EXHIBIT 4.3
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AMENDED AND RESTATED TRUST AGREEMENT
among
FIRST HAWAIIAN, INC.,
as Depositor
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
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Dated as of June 30, 1997
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FIRST HAWAIIAN CAPITAL I
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINED TERMS . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CONTINUATION OF THE ISSUER TRUST . . . . 12
Section 2.1 Name . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.2 Office of the Delaware Trustee; Principal
Place of Business . . . . . . . . . . . . . . . 12
Section 2.3 Initial Contribution of Trust Property;
Organizational Expenses . . . . . . . . . . . . 12
Section 2.4 Issuance of the Capital Securities. . . . . . . . 12
Section 2.5 Issuance of the Common Securities; Subscription
and Purchase of Debentures . . . . . . . . . . 13
Section 2.6 Continuation of Trust . . . . . . . . . . . . . . 13
Section 2.7 Authorization to Enter into Certain
Transactions . . . . . . . . . . . . . . . . . 14
Section 2.8 Assets of Trust . . . . . . . . . . . . . . . . 18
Section 2.9 Title to Trust Property . . . . . . . . . . . . 18
ARTICLE III
PAYMENT ACCOUNT . . . . . . . . 18
Section 3.1 Payment Account . . . . . . . . . . . . . . . . . 18
ARTICLE IV
DISTRIBUTIONS; REDEMPTION . . . . . 18
Section 4.1 Distributions . . . . . . . . . . . . . . . . . 18
Section 4.2 Redemption . . . . . . . . . . . . . . . . . . . 19
Section 4.3 Subordination of Common Securities . . . . . . . 21
Section 4.4 Payment Procedures . . . . . . . . . . . . . . . 22
Section 4.5 Tax Returns and Reports . . . . . . . . . . . . 22
Section 4.6 Payments under Indenture or Pursuant to Direct
Actions . . . . . . . . . . . . . . . . . . . 23
ARTICLE V
TRUST SECURITIES CERTIFICATES . . . . 23
Section 5.1 Initial Ownership . . . . . . . . . . . . . . . 23
Section 5.2 The Trust Securities Certificates . . . . . . . 23
Section 5.3 Execution and Delivery of Trust Securities
Certificates . . . . . . . . . . . . . . . . 24
Section 5.4 Book-Entry Capital Securities . . . . . . . . . 24
Section 5.5 Registration, Transfer and Exchange
Generally; Certain Transfers and Exchange;
Securities Act Legends . . . . . . . . . . . . 26
Section 5.6 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . 30
Section 5.7 Persons Deemed Holders . . . . . . . . . . . . . 30
Section 5.8 Access to List of Holders' Names and
Addresses . . . . . . . . . . . . . . . . . . 30
Section 5.9 Maintenance of Office or Agency . . . . . . . . 30
Section 5.10 Appointment of Paying Agents . . . . . . . . . . 31
Section 5.11 Ownership of Common Securities by Depositor . . 31
Section 5.12 Notices to Clearing Agency . . . . . . . . . . . 32
Section 5.13 Rights of Holders; Waivers of Past Defaults . . 32
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING . . . 34
Section 6.1 Limitations on Voting Rights . . . . . . . . . . 34
Section 6.2 Notice of Meetings . . . . . . . . . . . . . . . 35
Section 6.3 Meetings of Holders of the Capital
Securities . . . . . . . . . . . . . . . . . . 35
Section 6.4 Voting Rights . . . . . . . . . . . . . . . . . 36
Section 6.5 Proxies, etc. . . . . . . . . . . . . . . . . . 36
Section 6.6 Holder Action by Written Consent . . . . . . . . 36
Section 6.7 Record Date for Voting and Other Purposes . . . 36
Section 6.8 Acts of Holders . . . . . . . . . . . . . . . . 37
Section 6.9 Inspection of Records . . . . . . . . . . . . . 38
ARTICLE VII
REPRESENTATIONS AND WARRANTIES . . . . 38
Section 7.1 Representations and Warranties of the
Property Trustee and the Delaware Trustee . . 38
Section 7.2 Representations and Warranties of Depositor . . 39
ARTICLE VIII
THE ISSUER TRUSTEES; PAYING AGENTS . . . 40
Section 8.1 Certain Duties and Responsibilities . . . . . . 40
Section 8.2 Certain Notices . . . . . . . . . . . . . . . . 42
Section 8.3 Certain Rights of Property Trustee . . . . . . . 43
Section 8.4 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . 45
Section 8.5 May Hold Securities . . . . . . . . . . . . . . 45
Section 8.6 Compensation; Indemnity; Fees . . . . . . . . . 45
Section 8.7 Corporate Property Trustee Required;
Eligibility of Issuer Trustees . . . . . . . . 47
Section 8.8 Conflicting Interests . . . . . . . . . . . . . 48
Section 8.9 Co-Trustees and Separate Trustee . . . . . . . . 48
Section 8.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 49
Section 8.11 Acceptance of Appointment by Successor . . . . . 51
Section 8.12 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . 51
Section 8.13 Preferential Collection of Claims Against
Depositor or Issuer Trust . . . . . . . . . . 52
Section 8.14 Property Trustee May File Proofs of Claim . . . 52
Section 8.15 Reports by Property Trustee . . . . . . . . . . 52
Section 8.16 Reports to the Property Trustee . . . . . . . . 53
Section 8.17 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 53
Section 8.18 Number of Issuer Trustees . . . . . . . . . . . 54
Section 8.19 Delegation of Power . . . . . . . . . . . . . . 54
Section 8.20 Appointment of Administrative Trustees . . . . . 54
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER . . . 55
Section 9.1 Dissolution Upon Expiration Date . . . . . . . . 55
Section 9.2 Early Dissolution . . . . . . . . . . . . . . . 55
Section 9.3 Termination . . . . . . . . . . . . . . . . . . 56
Section 9.4 Liquidation . . . . . . . . . . . . . . . . . . 56
Section 9.5 Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust . . . . . . . . . 57
ARTICLE X
MISCELLANEOUS PROVISIONS . . . . . . 58
Section 10.1 Limitation of Rights of Holders. . . . . . . . . 58
Section 10.2 Amendment . . . . . . . . . . . . . . . . . . . 59
Section 10.3 Separability . . . . . . . . . . . . . . . . . . 60
Section 10.4 Governing Law . . . . . . . . . . . . . . . . . 60
Section 10.5 Payments Due on Non-Business Day . . . . . . . . 60
Section 10.6 Successors . . . . . . . . . . . . . . . . . . . 61
Section 10.7 Headings . . . . . . . . . . . . . . . . . . . . 61
Section 10.8 Reports, Notices and Demands . . . . . . . . . . 61
Section 10.9 Agreement Not to Petition . . . . . . . . . . . 62
Section 10.10 Trust Indenture Act; Conflict with Trust
Indenture Act . . . . . . . . . . . . . . . . 62
Section 10.11 Acceptance of Terms of Trust Agreement,
Guarantee Agreement and Indenture . . . . . . 63
AMENDED AND RESTATED TRUST AGREEMENT, dated as of June 30, 1997,
among (i) First Hawaiian, Inc., a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) The First National Bank of
Chicago, a national banking association, 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 (in such capacity,
the "Delaware Trustee"), (iv) Xxxxxxx X. Xxxxxxxxx, III, an individual, and
Xxxxxx X. Xxxxx, an individual, each of whose address is c/o First Hawaiian,
Inc., First Hawaiian Center, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000 (each
an "Administrative Trustee") (the Property Trustee, the Delaware Trustee and
the Administrative Trustees being referred to collectively as the "Issuer
Trustees") and (v) the holders, from time to time, of undivided beneficial
ownership interests in the assets of the Issuer Trust.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee and the Delaware
Trustee have heretofore duly declared and created a business trust pursuant
to the Delaware Business Trust Act by entering into the Trust Agreement,
dated as of June 23, 1997 (the "Original Trust Agreement"), and by the
execution and filing by the Property Trustee and the Delaware Trustee with
the Secretary of State of the State of Delaware of the Certificate of Trust,
filed on June 23, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer 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 Issuer Trust to the Depositor, (ii) the issuance and sale of the Capital
Securities by the Issuer Trust pursuant to the Purchase Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Debentures, and (iv) the appointment of the
Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, each party, for the benefit
of the other parties and for the benefit of the Holders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions.
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) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles;
(d) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section or an
Exhibit, as the case may be, of or to this Trust Agreement;
(e) All references to "the Trust Agreement" or "this Trust
Agreement" are to this Trust Agreement as modified, supplemented or amended
from time to time; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Distributions" means, with respect to Trust Securities
of a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount
of Debentures for such period.
"Administrative Trustee" means each Person appointed in accordance
with Section 8.20 solely in such Person's capacity as Administrative Trustee
of the Issuer Trust heretofore created and continued hereunder and not in
such Person's individual capacity, or any successor Administrative 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. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Capital Security, the rules and procedures
of the Clearing Agency for such Book-Entry Capital Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"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 of Directors" means the board of directors of the Depositor
or the Executive Committee of the board of directors of the Depositor (or any
other committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the
Depositor (or any such committee), comprised of two or more members of the
board of directors of the Depositor or officers of the Depositor, or both.
"Book-Entry Capital Securities Certificate" means a Capital
Securities Certificate evidencing ownership of Book-Entry Capital Securities.
"Book-Entry Capital Security" means a Capital Security, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.4.
"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 or Honolulu,
Hawaii are authorized or required by law or executive order to remain closed,
or (c) a day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Debenture Trustee is closed for business.
"Capital Security" means an 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 and a Liquidation Distribution to the extent provided
herein, and designated as 8.343% Capital Securities, Series A, or any
additional series issued pursuant to the exchange offer contemplated by the
Registration Rights Agreement, as the case may be.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as
Exhibit D.
"Certificate Depository Agreement" means the agreement among the
Issuer Trust, the Depositor and DTC, as the initial Clearing Agency, dated as
of the Closing Date, 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 Securities Exchange Act of 1934, as
amended. DTC 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 Time of Delivery, which date is also 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 or any
successor entity.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
"Common Securities Holder" means First Hawaiian, Inc. in its
capacity as purchaser and holder of all of the Common Securities issued or to
be issued by the Issuer Trust.
"Common Security" means an 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 and a Liquidation Distribution to the extent provided
herein.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal office of the Property Trustee located in
Chicago, Illinois, and (ii) when used with respect to the Debenture Trustee,
the principal office of the Debenture Trustee located in Chicago, Illinois.
"Debenture Event of Default" means any "Event of Default" specified
in Section 5.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures
to be redeemed under the Indenture, the date fixed for redemption of such
Debentures under the Indenture.
"Debenture Trustee" means the Person identified as the "Trustee" in
the Indenture, solely in its capacity as Trustee pursuant to the Indenture
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Trustee appointed as provided in the Indenture.
"Debentures" means the Depositor's 8.343% Junior Subordinated
Deferrable Interest Debentures, issued pursuant to the Indenture.
"Definitive Capital Securities Certificates" means either or both
(as the context requires) of (i) Capital Securities Certificates issued as
Book-Entry Capital Securities Certificates as provided in Section 5.2 or 5.4,
and (ii) Capital Securities Certificates issued in certificated, fully
registered form as provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., or any successor statute
thereto, in each case as amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Delaware Trustee of the trust heretofore created and continued hereunder and
not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"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 and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer 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 Issuer 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 Issuer Trustees in this
Trust Agreement (other than those specified 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 Issuer
Trustees and to the Depositor by the Holders of at least 25% 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 90 days thereof.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and The First National Bank of Chicago, as
guarantee trustee, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the Holders of the Trust Securities, as
amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such Person shall
be a beneficial owner within the meaning of the Delaware Business Trust Act;
provided, however, that in determining whether the Holders of the requisite
liquidation amount of Capital Securities have voted on any matter provided
for in this Trust Agreement, then for the purpose of such determination only
(and not for any other purpose hereunder), if the Capital Securities remain
in global form, the term "Holders" shall mean the holder of the global
security acting at the direction of the beneficial owners of the Capital
Securities.
"Indemnified Person" has the meaning specified in Section 8.6(c).
"Indenture" means the Junior Subordinated Indenture, dated as of
June 30, 1997, between the Depositor and the Debenture Trustee, as trustee,
as amended or supplemented from time to time.
"Initial Purchaser" means Xxxxxxx, Sachs & Co.
"Institutional Accredited Investor" means an institutional
accredited investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Issuer Trust" means the Delaware business trust known as "First
Hawaiian Capital I", which was created on June 23, 1997, under the Delaware
Business Trust Act pursuant to the Original Trust Agreement and is continued
pursuant to this Trust Agreement.
"Issuer Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Investment Company Act" means the Investment Company Act of 1940,
or any successor statute thereto, in each case as amended from time to time.
"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 any Trust
Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in accordance
with the Indenture, the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, (b) with respect to a distribution of
Debentures to Holders of Trust Securities in connection with a dissolution or
liquidation of the Issuer Trust, Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the Holder to whom such
Debentures are distributed, and (c) with respect to any distribution of
Additional Distributions to Holders of Trust Securities, Debentures having a
principal amount equal to the Liquidation Amount of the Trust Securities in
respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date of the dissolution, winding-up or
termination of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, Capital Securities
representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities.
"New Capital Securities" has the meaning specified in Section 5.2.
"New Capital Security Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form of Exhibit D;
provided, however, that such security shall not contain the Restricted
Capital Securities Legend.
"Officer's Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or one of the Vice
Presidents, by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the Issuer Trustees.
Any Officer's Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement by each officer signing the Officer's Certificate
that such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officer's
Certificate;
(c) a statement that 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 such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the
Depositor.
"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 Property Trustee
or delivered to the Property Trustee 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; 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 that have been paid or in exchange for or in
lieu of which other Capital Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.6 and 5.11;
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 Issuer Trustee or
any Affiliate of the Depositor or any Issuer Trustee shall be disregarded and
deemed not to be Outstanding, except that (a) in determining whether any
Issuer Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Capital Securities
that such Issuer Trustee knows to be so owned shall be so disregarded, and
(b) the foregoing clause (a) shall not apply at any time when all of the
Outstanding Capital Securities are owned by the Depositor, one or more of the
Issuer Trustees and/or any such Affiliate. Capital Securities so owned that
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 5.10 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 Holders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in accordance
with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"PORTAL" means the Private Offering, Resales and Trading through
Automatic Linkages (PORTAL) Market, and any successor market thereto.
"Plan" means an employee benefit or other plan subject to Title I
of the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Code.
"Plan Asset Entity" means any Person whose underlying assets
include "plan assets" by reason of any Plan's investment in such Person.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement, solely in its capacity as
Property Trustee of the trust heretofore created and continued hereunder and
not in its individual capacity, or its successor in interest in such
capacity, or any successor property trustee appointed as herein provided.
"PTCE" means a U.S. Department of Labor Prohibited Transaction
Class Exemption.
"Purchase Agreement" means the Purchase Agreement, dated June 25,
1997, among the Issuer Trust, the Depositor and the Purchaser, as the same
may be amended from time to time.
"Purchaser" has the meaning specified in the Purchase Agreement and
Schedule I thereto.
"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.
"Registration Default" means if (i) either the Depositor or the
Issuer 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 (c) of the Registration Rights Agreement.
"Registration Default Interest" has the meaning specified in
Section (c) of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof between the Depositor, the Issuer Trust and
the Initial Purchaser for the benefit of themselves and the Holders of the
Capital Securities issued by the Issuer Trust as of the date hereof, as the
same may be amended from time to time in accordance with the terms thereof.
"Regulation D" means Regulation D under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Restricted Capital Securities" means all Capital Securities the
Capital Securities Certificate, including Book-Entry Capital Securities
Certificate, for which is required pursuant to Section 5.5(c) to bear a
Restricted Capital Securities Legend.
"Restricted Capital Securities Legend" means a legend substantially
in the form of the legend required in the form of Capital Securities
Certificate set forth in Exhibit D to be placed upon a Restricted Securities
Certificate.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Exhibit E.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Securities Act" means the Securities Act of 1933, and any
successor statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Successor Capital Securities" of any particular Capital Securities
Certificate means every Capital Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer
Trust as that evidenced by, such particular Capital Securities Certificate;
and, for the purposes of this definition, any Capital Securities Certificate
executed and delivered under Section 5.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Capital Securities Certificate shall be
deemed to evidence the same beneficial interest in the Issuer Trust as the
mutilated, destroyed, lost or stolen Capital Securities Certificate.
"Time of Delivery" has the meaning specified in the Purchase
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, 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 if 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) any cash on deposit
in, or owing to, the Payment Account, and (c) all proceeds and rights in
respect of the foregoing.
"Trust Security" means any one of the Common Securities or the
Capital Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Capital Securities Certificates.
"Vice President" when used with respect to the Corporation, means
any duly appointed vice president, whether or not designated by a number or
word or words added before or after the title "vice president."
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
Section 2.1 Name.
The trust continued hereby shall be known as "First Hawaiian
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 Issuer Trustees, in which name the Issuer Trustees
(other than the Delaware Trustee) may conduct the business of the Issuer
Trust, make and execute contracts and other instruments on behalf of the
Issuer 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 000
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx or
such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Holders, the Depositor, the Property
Trustee and the Administrative Trustees. The principal executive office of
the Issuer Trust is c/o First Hawaiian, Inc., First Hawaiian Center, 000
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000, Attention: Treasurer.
Section 2.3 Initial Contribution of Trust Property; Organizational
Expenses.
The Issuer 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. Pursuant to Section 10.6 of the
Indenture, the Depositor, in its capacity as the issuer of the Debentures,
shall pay all of the organizational expenses of the Issuer Trust as they
arise or shall, upon request of any Issuer Trustee, promptly reimburse such
Issuer Trustee for any such expenses paid by such Issuer 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.
The Depositor, both on its own behalf and on behalf of the Issuer
Trust 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 Issuer
Trust, shall manually or by facsimile execute in accordance with Section 5.2
and 5.3 and the Property Trustee shall deliver to the Purchaser, Capital
Securities Certificates, registered in the names requested by the Purchaser,
evidencing an aggregate of 100,000 Capital Securities having an aggregate
Liquidation Amount of $100,000,000 (the "Original Capital Securities"),
against receipt of the aggregate purchase price of such Capital Securities of
$100,000,000 (plus accrued Distributions, if any) by the Property Trustee.
In addition, an Administrative Trustee, on behalf of the Issuer
Trust, may execute Capital Securities Certificates in accordance with Section
5.2 representing an additional class of Capital 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 100,000, 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 Issuer Trust, shall
execute in accordance with Section 5.2 and 5.3 and the Property Trustee shall
deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, evidencing an aggregate of 3,093 Common Securities
having an aggregate Liquidation Amount of $3,093,000, against receipt of the
aggregate purchase price of such Common Securities of $3,093,000 (plus
accrued Distributions, if any), by the Property Trustee. Contemporaneously
therewith, the Depositor shall issue and sell to the Issuer Trust, and the
Issuer Trust shall purchase from the Depositor, Debentures having an
aggregate principal amount equal to $103,093,000 registered in the name of
the Property Trustee on behalf of the Issuer Trust and, in satisfaction of
the purchase price for such Debentures, the Property Trustee, on behalf of
the Issuer Trust, shall deliver to the Depositor the sum of $103,093,000
(plus accrued Distributions, if any) (being the sum of the amounts delivered
to the Property Trustee pursuant to (i) the second sentence of Section 2.4,
and (ii) the first sentence of this Section 2.5).
Section 2.6 Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to
acquire the Debentures, (b) to make Distributions to holders, and (c) to
engage in only those activities necessary or incidental thereto. The
Depositor hereby appoints the Issuer Trustees as trustees of the Issuer
Trust, to have all the rights, powers and duties to the extent set forth
herein, and the respective Issuer 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 Issuer Trust and the Holders. The Administrative Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable
law. 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 Issuer Trustees set forth herein, except as required by the Delaware
Business Trust Act. The Delaware Trustee shall be one of the trustees of the
Issuer Trust for the sole and limited purpose of fulfilling the requirements
of Section 3807 of the Delaware Business Trust Act and for taking such
actions as are required to be taken by a Delaware trustee under the Delaware
Business Trust Act.
Section 2.7 Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer
Trust in accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section 2.7, and in accordance
with the following provisions (i) and (ii), the Property Trustee and the
Administrative Trustees shall have the authority to enter into all
transactions and agreements determined by the Property Trustee and
Administrative Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to such Issuer Trustees, as the case
may be, under this Trust Agreement, and to perform all acts in furtherance
thereof, including the following:
(i) As among the Issuer Trustees, each Administrative Trustee,
acting individually or jointly, shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following matters:
(A) establishing the terms and form of the Trust Securities
in the manner specified in Section 5.2 and the issuance and sale of
the Trust Securities in accordance with this Trust Agreement;
(B) causing the Issuer Trust to enter into, and to execute,
deliver and perform on behalf of the Issuer Trust the Certificate
Depository Agreement and such other agreements as may be necessary
or incidental in connection with the purposes and function of the
Issuer Trust;
(C) assisting in compliance with the duties and obligations
of the Issuer Trust under and the Securities Act and under
applicable state securities or blue sky laws (including by means of
registration of the Capital Securities thereunder from time to
time) and the Trust Indenture Act;
(D) assisting in obtaining the designation of the Capital
Securities for trading in PORTAL and if and at such time determined
by the Depositor, to The New York Stock Exchange, Inc. or any other
national stock exchange or automated quotation system for listing
upon notice of issuance of any Capital Securities;
(E) assisting in the sending of notices (other than notices
of default) and other information regarding the Trust Securities
and the Debentures to the Holders in accordance with this Trust
Agreement;
(F) consenting to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with
this Trust Agreement (which consent shall not be unreasonably
withheld);
(G) executing the Trust Securities on behalf of the Issuer
Trust in accordance with this Trust Agreement;
(H) executing and delivering closing certificates, if any,
pursuant to the Purchase Agreement and application for a taxpayer
identification number for the Issuer Trust;
(I) unless otherwise determined by the Property Trustee or
Holders of at least a Majority in Liquidation Amount of the Capital
Securities or as otherwise required by the Delaware Business Trust
Act or the Trust Indenture Act, executing on behalf of the Issuer
Trust (either acting alone or together with any other
Administrative Trustee) any documents that the Administrative
Trustees have the power to execute pursuant to this Trust
Agreement;
(J) executing and entering into the Registration Rights
Agreement and assisting in compliance with the Registration Rights
Agreement including filings under the Securities Act;
(K) taking any action incidental to the foregoing as the
Issuer Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement; and
(L) delegating, by power of attorney consistent with
applicable law to any other natural person over the age of 21 his
or her power for the purposes of signing any documents which the
Administrative Trustees have power and authority to cause the
Issuer Trust to execute pursuant to this Section 2.7.
(ii) The Property Trustee shall have the power, duty and authority
to act on behalf of the Issuer Trust with respect to the following
matters:
(A) establishing the Payment Account;
(B) receiving the Debentures;
(C) collecting interest, principal and any other payments
made in respect of the Debentures and the holding of such amounts
in the Payment Account;
(D) distributing through any Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) exercising all of the rights, powers and privileges of a
holder of the Debentures;
(F) sending notices of default and other information
regarding the Trust Securities and the Debentures to the Holders in
accordance with this Trust Agreement;
(G) distributing the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, winding
up the affairs of and liquidating the Issuer Trust and preparing,
executing and filing the certificate of cancellation with the
Secretary of State of the State of Delaware; and
(I) after an Event of Default (other than under paragraph
(b), (c), (d) or (e) of the definition of such term if such Event
of Default is by or with respect to the Property Trustee) 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 to protect and
conserve the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder).
(b) So long as this Trust Agreement remains in effect, the Issuer
Trust (or the Issuer Trustees acting on behalf of the Issuer Trust) shall not
undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, the Issuer Trustees,
acting in their capacity as such, shall not (i) acquire any investments other
than the Debentures 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 or interests therein,
including to Holders, except as expressly provided herein, (iii) possess any
power or otherwise act in such a way as to vary the Trust Property, (iv) take
any action that would reasonably be expected to cause the Issuer Trust to
become taxable as a corporation or classified as other than a grantor trust
for United States federal income tax purposes, (v) incur any indebtedness for
borrowed money or issue any other debt, or (vi) take or consent to any action
that would result in the placement of a Lien on any of the Trust Property.
The Administrative Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital
Securities, the Depositor shall have the right and responsibility to assist
the Issuer Trust with respect to, or effect on behalf of the Issuer Trust,
the following (and any actions taken by the Depositor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) the preparation by the Issuer Trust of an Offering Circular in
relation to the Capital Securities, including any amendments thereto and
the taking of any action necessary or desirable to sell the Capital
Securities in a transaction or a series of transactions exempt from the
registration requirements of the Securities Act;
(ii) the determination of the States, or other jurisdictions, if
any, 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 that must be taken by or on behalf of
the Issuer Trust, and the advice to the Issuer Trustees of actions they
must take on behalf of the Issuer Trust, and the preparation for
execution and filing of any documents to be executed and filed by the
Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of
any such States in connection with the sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Purchase Agreement;
(iv) the taking of any other actions necessary or incidental to
carry out any of the foregoing activities;
(v) the preparation of filing by the Issuer Trust with the
Commission one or more registration statements on the applicable forms,
including any amendments thereto, pertaining to the Capital Securities,
the Guarantee Agreement and the Debentures;
(vi) the preparation of filing by the Issuer Trust with the
Commission of a registration statement on Form 8-A, including any
amendments thereto, if such filing is determined to be necessary or
desirable by the Depositor; and
(vii) the compliance by the Depositor with the Registration Rights
Agreement including preparation and filing of necessary filings under
the Securities Act.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust
will not be deemed to be an "investment company" required to be registered
under the Investment Company Act, and will not be taxable as a corporation or
classified 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,
each Administrative Trustee and the Holder of the Common Securities are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that such Administrative
Trustee or Holder of the Common Securities determines in its discretion to be
necessary for such purposes, as long as such action does not adversely affect
in any material respect the interests of the Holders of the Outstanding
Capital Securities. In no event shall the Issuer Trustees be liable to the
Issuer Trust or the Holders for any failure to comply with this section that
results from a change in law or regulation or in the interpretation thereof.
Section 2.8 Assets of Trust.
The assets of the Issuer 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 in trust for the benefit of the Issuer
Trust and the Holders 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 its agents 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 Holders 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. 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 undivided beneficial interests
in the Trust Property, and Distributions (including any Additional
Distributions) will be made on the Trust Securities at the rate and on the
dates that payments of interest (including any Additional Interest, as
defined in the Indenture) are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall
accumulate from June 30, 1997, and, except in the event (and to the
extent) that the issuer of the Debentures exercises its right to defer
the payment of interest on the Debentures pursuant to the Indenture,
shall be payable semi-annually in arrears on January 1 and July 1 of
each year, commencing on January 1, 1998. 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 next
succeeding Business Day falls within 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 the date on which
such payment was originally payable (each date on which distributions
are payable in accordance with this Section 4.1(a), a "Distribution
Date").
(ii) The Trust Securities shall be entitled to Distributions
payable at a rate, not including Additional Distributions, of 8.343% per
annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full Distribution
period shall be computed on the basis of a 360-day year of twelve 30-day
months and the actual number of days elapsed in a partial month in a
period. Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by two. The amount of
Distributions payable for any period shall include any Additional
Distributions in respect of such period.
(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 that the Issuer 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 at the close of business on
the relevant record date, which shall be at the close of business on the
fifteenth day (whether or not a Business Day) 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 Issuer 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 or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined
in) the Indenture together with a statement that it is an estimate and
that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (and, if an estimate is
provided, that a further notice shall be sent of the actual Redemption
Price on the date on which such Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Capital Securities
affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after such date,
except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer 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 Holders; 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 Issuer Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(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 such Book-Entry Capital Securities, to the extent
available therefor, 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 of the Capital Securities. 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 or Paying Agents, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give the Paying
Agent or Paying Agents irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Capital Securities upon surrender of
their Capital Securities Certificates. 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 Holders holding Trust Securities so called for
redemption will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
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 (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 Issuer Trust or by the Depositor pursuant to the Guarantee Agreement,
Distributions on such Trust Securities will continue to accumulate, as set
forth in Section 4.1, from the Redemption Date originally established by the
Issuer Trust for such Trust Securities to the date the 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) 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 to the Common
Securities and the Capital Securities based upon the relative Liquidation
Amounts of such classes. The particular Capital Securities to be redeemed
shall be selected on a pro rata basis based upon their respective 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, and provided that, after giving effect to such redemption, no
Holder shall hold Capital Securities with an aggregate Liquidation Amount of
less than $100,000. 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 only in part,
to the portion of the aggregate Liquidation Amount of Capital Securities that
has been or is to be redeemed.
Section 4.3 Subordination of Common Securities.
(a) Payment of Distributions (including any Additional
Distributions) on, the Redemption Price of, and the Liquidation Distribution
in respect of the Trust Securities, as applicable, shall be made 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, Redemption Date or Liquidation Date any Event of Default
resulting from a Debenture Event of Default specified in Section 5.1(1) or
5.1(2) of the Indenture shall have occurred and be continuing, no payment of
any Distribution (including any Additional Distributions) on, Redemption
Price of, or Liquidation Distribution in respect 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 any Additional
Distributions) 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, or in the case of payment of
the Liquidation Distribution the full amount of such Liquidation Distribution
on all Outstanding Capital Securities, shall have been made or provided for,
and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including any
Additional Distributions) on, the Redemption Price of or the Liquidation
Distribution in respect of the 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 the Common
Securities shall have no right to act with respect to any such Event of
Default under this Trust Agreement until the effects of all such Events of
Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Capital Securities have been so cured, waived
or otherwise eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Capital Securities and not on behalf of 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 any Additional Distributions)
or of the Redemption Price, Liquidation Amount or any other amounts 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 available funds. 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 all the Common Securities.
Section 4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be
prepared), at the expense of the issuer of the Debentures, 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 Issuer Trust. In this
regard, the Administrative Trustees shall (a) prepare and file (or cause to
be prepared and filed) all Internal Revenue Service forms required to be
filed in respect of the Issuer Trust in each taxable year of the Issuer
Trust, and (b) prepare and furnish (or cause to be prepared and furnished) to
each Holder all Internal Revenue Service forms required to be provided by the
Issuer Trust. 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 Issuer Trustees shall comply with
United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders
under the Trust Securities.
Section 4.6 Payments under Indenture or Pursuant to Direct
Actions.
Any amount payable hereunder to any Holder of Capital Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received pursuant to Section 5.8 of the Indenture or Section 5.13 of
this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1 Initial Ownership.
Upon the creation of the Issuer 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 Issuer Trust.
Section 5.2 The Trust Securities Certificates.
(a) The Administrative Trustees shall on behalf of the Issuer
Trust issue, in one or more issuances, Restricted Capital Securities
representing undivided beneficial ownership interests in the assets of the
Trust, and one class of Common Securities; provided, however, that the
Administrative Trustee may issue an additional class of Capital Securities in
accordance with Section 2.4. The Capital Securities Certificates shall be
issued in fully registered form in minimum denominations of $1,000
Liquidation Amount and integral multiples of $1,000 in excess thereof, and
the Common Securities Certificates 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 Issuer 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 Issuer 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 Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities shall be
issued in the form of one or more Book-Entry Capital Securities Certificates
registered in the name of DTC, as Clearing Agency, or its nominee and
deposited with DTC or a custodian for DTC for credit by DTC to the respective
accounts of the Owners thereof (or such other accounts as they may direct).
(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 5.3 Execution and Delivery of Trust Securities
Certificates.
At the Time of Delivery, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation Amount as provided
in Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and
delivered to or upon the written order of the Depositor, executed by an
authorized officer thereof, without further corporate action by the
Depositor, in authorized denominations.
Section 5.4 Book-Entry Capital Securities.
(a) Each Book-Entry Capital Securities Certificate issued under
this Trust Agreement shall be registered in the name of the Clearing Agency
or a nominee thereof and delivered to such Clearing Agency or a nominee
thereof or custodian therefor, and each such Book-Entry Capital Securities
Certificate shall constitute a single Capital Securities Certificate for all
purposes of this Agreement.
(b) Notwithstanding any other provision in this Trust Agreement,
no Book-Entry Capital Securities Certificate may be exchanged in whole or in
part for Capital Securities Certificates registered, and no transfer of a
Book-Entry Capital Securities Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency or a
nominee thereof unless (i) the Clearing Agency advises the Property Trustee
in writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Book-Entry Capital
Securities Certificates, and the Property Trustee is unable to locate a
qualified successor, (ii) the Issuer Trust at its option advises the Clearing
Agency in writing that it elects to terminate the book-entry system through
the Clearing Agency, or (iii) a Debenture Event of Default has occurred and
is continuing. Upon the occurrence of any event specified in clause (i),
(ii) or (iii) above, the Property Trustee shall notify the Clearing Agency
and instruct the Clearing Agency to notify all Owners of Book-Entry Capital
Securities and the Administrative Trustees of the occurrence of such event
and of the availability of the Definitive Capital Securities Certificates to
Owners of the Capital Securities requesting the same; provided, however, that
no Definitive Capital Securities Certificate shall be issued in an amount
representing less than 100 Capital Securities.
(c) If any Book-Entry Capital Securities Certificate is to be
exchanged for other Capital Securities Certificates or canceled in whole, it
shall be surrendered by or on behalf of the Clearing Agency or its nominee
for exchange or cancellation as provided in this Article V. If any Book-
Entry Capital Securities Certificate is to be exchanged for other Capital
Securities Certificates or canceled in part, or if any other Capital
Securities Certificate is to be exchanged in whole or in part for Book-Entry
Capital Securities represented by a Book-Entry Capital Securities
Certificate, then either (i) such Book-Entry 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 Book-
Entry Capital Securities Certificate shall be reduced, subject to Section
5.2, or increased by an amount equal to that portion of the Liquidation
Amount represented by the Book-Entry Capital Securities Certificate to be so
exchanged or canceled, or equal to that portion of the Liquidation Amount
represented by such other Capital Securities Certificates to be so exchanged
for Book-Entry Capital Securities represented thereby, as the case may be, by
means of an appropriate adjustment made on the records of the Securities
Registrar with notice to the Property Trustee, 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. Upon any such surrender or adjustment of a Book-
Entry Capital Securities Certificate by the Clearing Agency, accompanied by
registration instructions, the Administrative Trustees, or any one of them,
shall, subject to Section 5.5(b) and as otherwise provided in this Article V,
execute the Definitive Capital Securities Certificates issuable in exchange
for such Book-Entry Capital Securities Certificate (or any portion thereof)
in accordance with the instructions of the Clearing Agency; provided,
however, that no Definitive Capital Securities Certificate shall be issued in
an amount representing less than 100 Capital Securities. None of the
Securities Registrar or the Property Trustee or the Administrative 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. The Definitive Capital Securities Certificates shall be
printed, lithographed or engraved or may 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.
(d) Every Capital Securities Certificate executed and delivered
upon registration of transfer of, or in exchange for or in lieu of, a Book-
Entry Capital Securities Certificate or any portion thereof, whether pursuant
to this Article V or Section 4.2 or otherwise, shall be executed and
delivered in the form of, and shall be, a Book-Entry Capital Securities
Certificate, unless such Capital Securities Certificate is registered in the
name of a Person other than the Clearing Agency or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a
Book-Entry Capital Securities Certificate, shall be the Holder of such Book-
Entry Capital Securities Certificate for all purposes under this Trust
Agreement and the Capital Securities, and Owners with respect to a Book-Entry
Capital Securities Certificate shall hold such interests pursuant to the
Applicable Procedures. The Securities Registrar and the Property Trustee or
the Administrative 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 the Book-Entry Capital Securities represented
thereby and the giving of instructions or directions by or to Owners of Book-
Entry Capital Securities represented thereby) as the sole Holder of the Book-
Entry Capital Securities represented thereby and shall have no obligations to
the Owners thereof. None of the Depositor, the Issuer Trustees nor the
Securities Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.
(f) 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, the Applicable Procedures and agreements between
such Owners and the Clearing Agency and/or the Clearing Agency Participants.
Solely for the purposes of determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided for in this
Trust Agreement, so long as Definitive Capital Securities Certificates have
not been issued in certificated fully registered form, the Property Trustee
and the Administrative Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy) delivered
to such Issuer Trustees by the Clearing Agency setting forth the Holders'
votes or assigning the right to vote on any matter to any other Persons
either in whole or in part.
Section 5.5 Registration, Transfer and Exchange Generally; Certain
Transfers and Exchanges; Securities Act Legends.
(a) The Property Trustee shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.9, a register or registers
(the "Securities Register") in which the registrar and transfer agent with
respect to the Trust Securities (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the
registration of Capital Securities Certificates and (subject to Section 5.11)
Common Securities Certificates and of transfers and exchanges of Capital
Securities Certificates as herein provided. The Property Trustee is hereby
appointed Securities Registrar for the purpose of registering Capital
Securities Certificates and (subject to Section 5.11) Common Securities and
transfers and exchanges thereof as provided herein.
Upon surrender for registration of transfer of any Capital
Securities Certificate at the office or agency maintained pursuant to
Section 5.9, the Administrative Trustees or any one of them shall execute and
deliver to the Property Trustee, and the Property Trustee shall 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 and bearing such restrictive legends as may be required by
this Trust Agreement, dated the date of execution by such Administrative
Trustee or Trustees.
At the option of the Holder, Capital Securities Certificates may be
exchanged for other Capital Securities Certificates of the same series of any
authorized denominations, of like tenor and aggregate Liquidation Amount,
bearing such restrictive legends as may be required by this Trust Agreement
and bearing a number not contemporaneously Outstanding, upon surrender of the
Capital Securities Certificates to be exchanged at such office or agency.
Whenever any Capital Securities Certificates are so surrendered for exchange,
the Administrative Trustees or any one of them shall execute and deliver to
the Property Trustee, and the Property Trustee shall deliver, the Capital
Securities Certificates that the Holder making the exchange is entitled to
receive.
All Capital Securities issued upon any transfer or exchange of
Capital Securities shall evidence the same undivided beneficial interest in
the assets of the Issuer Trust, and be entitled to the same benefits under
this Trust Agreement, as the Capital Securities surrendered upon such
transfer or exchange.
The Securities Registrar shall not be required, (i) to issue,
register the transfer of or exchange any Capital Security during a period
beginning at the opening of business 15 days before the day of selection for
redemption of such Capital Securities pursuant to Article IV and ending at
the close of business on the day of mailing of the notice of redemption, or
(ii) to register the transfer of or exchange any Capital Security so selected
for redemption in whole or in part, except, in the case of any such Capital
Security to be redeemed in part, any portion thereof not to be redeemed.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed, or 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 such Holder's 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 Property Trustee in
accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Issuer Trust 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 Capital Securities Certificates and Book-Entry
Capital Securities shall be made only in accordance with this Section 5.5(b).
(i) Non-Book-Entry Capital Securities Certificate to Book-Entry
Capital Securities Certificate. If the Holder of a Capital Securities
Certificate (other than a Book-Entry Capital Securities Certificate)
wishes at any time to transfer all or any portion of such Capital
Securities Certificate to a Person who wishes to take delivery thereof
in the form of a beneficial interest in a Book-Entry Capital Securities
Certificate, such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) and subject to the Applicable
Procedures. Upon receipt by the Securities Registrar of (A) such
Capital Securities Certificate as provided in Section 5.5(a) and
instructions satisfactory to the Securities Registrar directing that a
specified number of Book-Entry Capital Securities to be represented by
such Book-Entry Capital Securities Certificate not greater than the
number of Capital Securities represented by such Capital Securities
Certificate be credited to a specified Clearing Agency Participant's
account and (B) if the Capital Securities Certificate to be transferred
evidences Restricted Capital Securities, a Restricted Securities
Certificate duly executed by such Holder or such Holder's attorney duly
authorized in writing, then the Securities Registrar shall cancel such
Capital Securities Certificate (and issue a new Capital Securities
Certificate in respect of any untransferred portion thereof) as provided
in Section 5.5(a) and increase the aggregate Liquidation Amount of the
Book-Entry Capital Securities Certificate by the Liquidation Amount of
such Capital Securities so transferred as provided in Section 5.4(c).
(ii) Non-Book-Entry Capital Securities Certificate to Non-Book-
Entry Capital Securities Certificate. A Capital Securities Certificate
that is not a Book-Entry Capital Securities Certificate may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Capital Securities Certificate that is not a Book-Entry
Capital Securities Certificate as provided in Section 5.5(a), provided
that if the Capital Securities Certificate to be transferred evidences
Restricted Capital Securities, then the Securities Registrar shall have
received a Restricted Securities Certificate duly executed by the
transferor Holder or such Holder's attorney duly authorized in writing.
(iii) Book-Entry Capital Securities Certificate to Non-Book-Entry
Capital Securities Certificate. A beneficial interest in a Book-Entry
Capital Securities Certificate may be exchanged for a Capital Securities
Certificate that is not a Book-Entry Capital Securities Certificate as
provided in Section 5.4.
(iv) Certain Initial Transfers of Non-Book-Entry Capital Securities
Certificates. In the case of Capital Securities Certificates initially
issued other than in global form, an initial transfer or exchange of
such Capital Securities Certificates that does not involve any change in
beneficial ownership may be made to an Institutional Accredited Investor
or Investors as if such transfer or exchange were not an initial
transfer or exchange, provided that written certification shall be
provided by the transferor and transferee of such Capital Securities to
the Securities Registrar that such transfer or exchange does not involve
a change in beneficial ownership.
(c) Except as set forth below, all Capital Securities Certificates
shall bear a Restricted Capital Securities Legend:
(i) New Capital Securities shall not bear a Restricted Legend;
(ii) subject to the following Clauses of this Section 5.5(c), a
Capital Securities Certificate or any portion thereof that is exchanged,
upon transfer or otherwise, for a Book-Entry Capital Securities
Certificate or any portion thereof shall bear the Restricted Capital
Securities Legend;
(iii) subject to the following Clauses of this Section 5.5(c), a new
Capital Securities Certificate that is not a Book-Entry Capital
Securities Certificate and is issued in exchange for another Capital
Securities Certificate (including a Book-Entry Capital Securities
Certificate) or any portion thereof, upon transfer or otherwise, shall
bear a Restricted 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 Restricted Securities 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 Restricted Securities 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 a Restricted 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;
(vi) a new Capital Securities Certificate that does not bear a
Restricted Capital Securities Legend may be issued in exchange for or in
lieu of a Capital Securities Certificate or any portion thereof that
bears such a legend if, in the Depositor's sole judgment, placing such
a legend upon such new Capital Securities Certificate is not and will
not be necessary to ensure compliance with the registration requirements
of the Securities Act, and the Administrative Trustees, at the direction
of the Depositor, shall execute and deliver such a new Capital
Securities Certificate as provided in this Article V; and
(vii) notwithstanding the foregoing provisions of this Section
5.5(c), a Successor Capital Securities Certificate of a Capital
Securities Certificate that does not bear a Restricted Capital
Securities Legend shall not bear such form of legend unless in the
Depositor's sole judgement such Successor Capital Securities Certificate
is a "restricted security" within the meaning of Rule 144 under the
Securities Act, in which case the Administrative Trustees, at the
direction of the Depositor, shall execute and deliver a new Capital
Securities Certificate bearing a Restricted Capital Securities Legend in
exchange for such Successor Capital Securities Certificate as provided
in this Article V.
(d) Any purchaser or Holder of any Capital Securities or any
interest therein will be deemed to have represented by its purchase and
holding thereof that it either (i) is not a Plan or a Plan Asset Entity and
is not purchasing such Capital Securities on behalf of or with "plan assets"
of any Plan, or (ii) is eligible for the exemptive relief available under
PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or another applicable exemption with
respect to such purchase or holding. The Securities Registrar may, and if
the Depositor shall so request, the Securities Registrar shall, before
registering for transfer or exchange any Capital Securities Certificates as
provided in Sections 5.2, 5.4 or 5.5 of this Trust Agreement, (A) require the
purchaser or Holder of such Capital Securities Certificates to confirm that
it either (x) is not a Plan, a Plan Asset Entity or a Person investing "plan
assets" of any Plan or (y) is eligible for the exemptive relief available
under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14, and (B) if such purchaser or
Holder does not provide such confirmation, require an Opinion of Counsel or
other evidence satisfactory to the Depositor of the availability to such
purchaser or Holder of another applicable exemption with respect to such
purchase or holding.
Section 5.6 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 Issuer 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 5.6, 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 5.6 shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Issuer Trust corresponding
to that evidenced by the lost, stolen or destroyed Trust Securities
Certificate, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
Section 5.7 Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each 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 none of the Issuer Trustees and the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.8 Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to
hold the Depositor or the Issuer Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.9 Maintenance of Office or Agency.
The Administrative Trustees 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 Issuer Trustees in respect of the Trust Securities Certificates may
be served. The Administrative Trustees initially designate the Corporate
Trust Office of the Property Trustee as its office and agency for such
purposes. The Administrative Trustees shall give prompt written notice to
the Depositor, the Property Trustee and to the Holders of any change in the
location of the Securities Register or any such office or agency.
Section 5.10 Appointment of Paying Agents.
The Paying Agent or Agents shall make Distributions to Holders 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 solely
for the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the Paying Agent in
its sole discretion. The Paying Agent shall initially be the Bank and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Depositor. 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. If the Bank shall no
longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor (which shall be a bank or trust company) that is reasonably
acceptable to the Depositor to act as Paying Agent. Such successor Paying
Agent or any additional Paying Agent shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Issuer 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 Holders in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders. 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.
Section 5.11 Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire, and
thereafter shall retain, beneficial and record ownership of the Common
Securities. Neither the Depositor nor any successor Holder of the Common
Securities may transfer less than all the Common Securities (except in
connection with a redemption thereof), and the Depositor or any such
successor Holder may transfer the Common Securities only (i) in connection
with a consolidation or merger of the Depositor into another corporation, 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, or (ii) to the Depositor or an Affiliate of the Depositor in
compliance with applicable law (including the Securities Act and applicable
state securities and blue sky laws). To the fullest extent permitted by law,
any attempted transfer of the Common Securities other than as set forth in
the next proceeding sentence shall be void. The Administrative Trustees
shall cause each Common Securities Certificate issued to the Depositor to
contain a legend stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
Section 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders
is required under this Trust Agreement, for so long as Capital Securities are
represented by a Book-Entry Capital Securities Certificate, the Issuer
Trustees shall give all such notices and communications specified herein to
be given to the Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Rights of Holders; Waivers of Past Defaults.
(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 Holders shall not have any right or title therein other
than the undivided beneficial interest in the assets of the Issuer Trust
conferred by their Trust Securities and they shall have no right to call for
any partition or division of property, profits or rights of the Issuer Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights
and when issued and delivered to Holders against payment of the purchase
price therefor will be fully paid and nonassessable by the Issuer 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% in 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% in Liquidation Amount of the Capital
Securities then Outstanding shall have the right to make such declaration by
a notice in writing to the Property Trustee, the Depositor and the Debenture
Trustee.
At any time after 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 provided in the
Indenture, if the Property Trustee fails to annul any such declaration and
waive such default, the Holders of at least a Majority in 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 on all of the
Debentures,
(B) any accrued Additional Interest (as defined in the
Indenture) on all of the Debentures,
(C) the principal of (and premium, if any, on) any Debentures
that have become due otherwise than by such declaration of
acceleration and interest and Additional Interest thereon at the
rate borne by the Debentures, and
(D) 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 that has become
due solely by such acceleration, have been cured or waived as provided
in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Trust Securities,
waive any past default or Event of Default under the Indenture, except a
default or Event of Default in the payment of principal or interest (unless
such default or Event of 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 or
Event of Default in respect of a covenant or provision that 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 any
part of the 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 that 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 that 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 5.13(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 any amounts payable in respect of Debentures having
an aggregate principal amount equal to the aggregate Liquidation Amount of
the Capital Securities of such Holder (a "Direct Action"). Except as set
forth in Section 5.13(b) and this Section 5.13(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.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of
this Section 5.13, the Holders of at least a Majority in Liquidation Amount
of the Capital Securities may, on behalf of the Holders of all the Trust
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist,
and any default or Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Trust Agreement, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
ARTICLE VI
ACTS OF HOLDERS; 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 Issuer 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 Holders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Issuer 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
Property Trustee with respect to the Debentures, (ii) waive any past default
that may be waived 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 at least a Majority in Liquidation Amount of the
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 Property
Trustee 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 the Capital Securities. The Property Trustee shall notify all
Holders of the Capital Securities of any notice of default received with
respect to the Debentures. In addition to obtaining the foregoing approvals
of the Holders of the Capital Securities, prior to taking any of the
foregoing actions, the Issuer Trustees 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 Issuer Trust to be taxable as a
corporation or classified as other than a grantor trust for United States
Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Issuer 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 the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Issuer 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 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
Issuer Trust to be taxable as a corporation or classified as other than a
grantor trust for United States Federal income tax purposes.
Section 6.2 Notice of Meetings.
Notice of all meetings of the Holders of the 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 Holder of Capital
Securities, at such Holder's 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 the Capital Securities.
No annual meeting of Holders is required to be held. The
Administrative Trustees, however, shall call a meeting of the Holders of the
Capital Securities to vote on any matter upon the written request of the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Capital Securities and the Administrative Trustees or the Property Trustee
may, at any time in their discretion, call a meeting of the Holders of the
Capital Securities to vote on any matters as to which such Holders are
entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the
Capital Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the
Holders present, in person or by proxy, holding Capital Securities
representing at least a majority of the aggregate Liquidation Amount of the
Capital Securities held by the Holders present, either in person or by proxy,
at such meeting shall constitute the action of the Holders of the Capital
Securities, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.4 Voting Rights.
Holders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Outstanding Trust Securities in
respect of any matter as to which such Holders are entitled to vote.
Section 6.5 Proxies, etc.
At any meeting of Holders, any Holder 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 Issuer 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 Holders 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 Holder 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 Holder Action by Written Consent.
Any action that may be taken by Holders of Capital Securities at a
meeting may be taken without a meeting if Holders holding at least a Majority
in Liquidation Amount of the Capital Securities entitled to vote in respect
of such action (or such larger proportion thereof as shall be required by any
other provision of this Trust Agreement) shall consent to the action in
writing. Any action that may be taken by the Holder of all the Common
Securities may be taken if such Holder shall consent to the action in
writing.
Section 6.7 Record Date for Voting and Other Purposes.
For the purposes of determining the Holders 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 Holders 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 Holders of record
for such purposes.
Section 6.8 Acts of Holders.
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 Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders 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 Holders 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
Issuer Trustees, if made in the manner provided in this Section 6.8.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of
the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner that any
Issuer Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Trust Security shall bind every
future Holder of the same Trust Security and the Holder 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 Issuer Trustees, the Depositor or the Issuer Trust in
reliance thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Holder 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 among the Holders or the Issuer Trustees
with respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such
Holation of such matter by the Property Trustee shall be conclusive with
respect to such matter.
Section 6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Issuer Trust shall be open to inspection
by Holders (and other Issuer Trustees) during normal business hours for any
purpose reasonably related to such Holder's interest as a Holder (or such
Issuer Trustee's service as a Trustee hereunder).
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 Holders 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 under the laws of the State
of Delaware and satisfies for the Issuer Trust the requirements of Section
3807(a) of the Delaware Business Trust Act;
(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 have been duly authorized by all necessary corporate or other
action on the part of the Property Trustee and the Delaware Trustee and do
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 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) none of 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 the case may be, 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 law of the United States or the State of Delaware
governing the banking, trust or general powers of the Property Trustee or the
Delaware Trustee, as appropriate in context; and
(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 that, individually or in the aggregate, would materially and
adversely affect the Issuer Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case may
be, to enter into or perform its obligations as one of the Issuer Trustees
under this Trust Agreement.
Section 7.2 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Time of
Delivery on behalf of the Issuer Trust have been duly authorized and will
have been duly and validly executed, issued and delivered by the Issuer
Trustees pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement and the Holders will be, as of such
date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust)
under the laws of the State of Delaware or any political subdivision thereof
in connection with the execution, delivery and performance by either Issuer
Trustee of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES; PAYING AGENTS
Section 8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall
be as provided by this Trust Agreement and, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, but
subject to Section 8.1(c), no provision of this Trust Agreement shall require
any of the Issuer Trustees to expend or risk its or their own funds or
otherwise incur any financial liability in the performance of any of its or
their duties hereunder, or in the exercise of any of its or their rights or
powers, if it or they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it or 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 Issuer Trustees
shall be subject to the provisions of this Section 8.1. Nothing in this
Trust Agreement shall be construed to release an Administrative Trustee from
liability for his or her own gross negligent action, his or her own gross
negligent failure to act, or his or her own wilful misconduct; provided,
however, that notwithstanding the foregoing clause, nothing contained in this
Trust Agreement shall limit or diminish in any way any right to
indemnification or defense that any Administrative Trustee may have by virtue
of his or her status as an employee or officer of Depositor or any subsidiary
of Depositor. To the extent that, at law or in equity, an Issuer Trustee has
duties and liabilities relating to the Issuer Trust or to the Holders, such
Issuer Trustee shall not be liable to the Issuer Trust or to any Holder for
such Issuer 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 Issuer Trustees otherwise existing
at law or in equity, are agreed by the Depositor and the Holders to replace
such other duties and liabilities of the Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms
hereof. Each Holder, 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 Issuer 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 Issuer Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.
(c) If an Event of Default has occurred and is continuing, the
Property Trustee shall enforce this Trust Agreement for the benefit of the
Holders.
(d) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement (including pursuant to Section 10.10), and no implied
covenants shall be read into this Trust Agreement against the Property
Trustee. If an Event of Default has occurred (that has not been cured or
waived pursuant to Section 5.13), the Property Trustee shall exercise such of
the rights and powers vested in it by this Trust Agreement, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(e) 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 wilful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Trust
Agreement (including pursuant to Section 10.10), and the Property
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Property Trustee and conforming to the requirements of this
Trust Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture Act
are specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Trust Agreement.
(ii) 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;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of at least a Majority in Liquidation
Amount of the Capital 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;
(iv) 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;
(v) 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 to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law;
(vi) 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 any other
Issuer Trustee or the Depositor; and
(vii) No provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Property Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Trust Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(f) The Administrative Trustees shall not be responsible for
monitoring the compliance by the Issuer Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall either Administrative
Trustee be liable for the default or misconduct of any other Issuer Trustee
or the Depositor. The Delaware Trustee shall not be responsible for
monitoring compliance by the Property Trustee, the Administrative Trustees or
the Depositor with their respective duties under this Trust Agreement, nor
shall the Delaware Trustee be liable for the default or misconduct of any
other Issuer Trustee or the Depositor.
Section 8.2 Certain Notices.
Within ninety days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
Event of Default to the Holders, the Administrative Trustee and the
Depositor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of written 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 Holders and the Administrative Trustees, unless such exercise
shall have been revoked.
The Property Trustee shall not be deemed to have knowledge of any
Event of Default unless the Property Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Trust Agreement shall have obtained actual knowledge, of such Event of
Default.
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,
(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 the Capital Securities are entitled to vote under the
terms of this Trust Agreement, the Property Trustee shall deliver a notice to
the Depositor requesting the Depositor's opinion as to the course of action
to be taken and the Property Trustee shall take such action, or refrain from
taking such action, as the Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor; provided, however, that if
the Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which to the
extent practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and in the
best interests of the Holders, in which event the Property Trustee shall have
no liability except for its own bad faith, negligence or wilful misconduct;
(c) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officer's Certificate;
(d) any direction or act of an Administrative Trustee contemplated
by this Trust Agreement shall be sufficiently evidenced by a certificate
executed by such Administrative Trustee and setting forth such direction or
act;
(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 re-registration 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 Holders pursuant to this Trust Agreement,
unless such Holders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might
be incurred by it in compliance with such request or direction; provided
that, nothing contained in this Section 8.3(g) shall be taken to relieve the
Property Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Trust
Agreement;
(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 Holders, 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, bad faith or wilful misconduct with
respect to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder, the
Property Trustee (i) may request instructions from the Holders (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 any Issuer 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 it 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 any Issuer 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 Issuer
Trust, and the Issuer Trustees do not assume any responsibility for their
correctness. The Issuer Trustees shall not be accountable for the use or
application by the Depositor of the proceeds of the Debentures.
The Property Trustee may conclusively assume that any funds held by
it hereunder are legally available unless an officer of the Property Trustee
assigned to its Corporate Trust Office shall have received written notice
from the Depositor, any Holder or any other Issuer Trustee that such funds
are not legally available.
Section 8.5 May Hold Securities.
Any Issuer Trustee or any agent of any Issuer Trustee or the Issuer
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 and, except
as provided in the definition of the term "Outstanding" in Article I, may
otherwise deal with the Issuer Trust with the same rights it would have if it
were not an Issuer Trustee or such agent.
Section 8.6 Compensation; Indemnity; Fees.
The Depositor, in its capacity as the issuer of the Debentures,
agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time to
time such reasonable compensation for all services rendered by them hereunder
as may be agreed by the Depositor and such Issuer Trustee or Paying Agent, as
the case may be, from time to time (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse
each Issuer Trustee and Paying Agent upon request for all reasonable
expenses, disbursements and advances incurred or made by each Issuer Trustee
and Paying Agent in accordance with any provision of this Trust Agreement
(including the reasonable compensation and the expenses and disbursements of
their agents and counsel), except any such expense, disbursement or advance
as may be attributable to their negligence, bad faith or wilful misconduct;
and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Issuer Trustee, (ii) each Paying Agent,
(iii) any Affiliate of any Issuer Trustee, (iv) any officer, director,
shareholder, employee, representative or agent of any Issuer Trustee, and
(v) any employee or agent of the Issuer Trust (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
Issuer Trust or any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Issuer 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, bad faith or wilful misconduct with respect to such acts or
omissions; provided, however, that notwithstanding the foregoing clause,
nothing contained in this Trust Agreement shall limit or diminish in any way
any right to indemnification or defense that any Administrative Trustee may
have by virtue or his or her status as an employee or officer of Depositor or
any subsidiary of Depositor; and
(d) to the fullest extent permitted by applicable law, the parties
intend that Section 3561 of Title 12 of the Delaware Code shall not apply to
the Issuer Trust and that compensation payable to any Issuer Trustee pursuant
to this Section 8.6 not be subject to review by any court under Section 3560
of Title 12 of the Delaware Code or otherwise.
The Common Securities Holder shall be liable to each person or
entity to which the Issuer Trust is now or hereafter becomes indebted or
liable (each a Beneficiary) for all of the debts, obligations, costs,
expenses, and taxes of the Issuer Trust (other than obligations of the Issuer
Trust to pay to holders of any Trust Securities the amount due such holders
pursuant to the terms of the Trust Securities) to the extent not satisfied
out of the Issuer Trust's assets. Such liabilities and obligations shall
constitute unsecured obligations of the Common Securities Holder and shall
rank subordinate and junior in right of payment to all Senior Indebtedness
(as defined in the Indenture) of the Common Securities Holder to the extent
and in the manner set forth in the Indenture with respect to the Debentures,
and the provisions of Article XIII of the Indenture will apply, mutatis
mutandis, to the obligations of the Common Securities Holder hereunder. The
obligations of the Common Securities Holder hereunder do not constitute
Senior Indebtedness (as defined in the Indenture) of the Common Securities
Holder. Any such Beneficiary may enforce such obligations of the Common
Securities Holder directly against the Common Securities Holder, and the
Common Securities Holder irrevocably waives any right or remedy to require
that any such Beneficiary take any action against the Issuer Trust or any
other Person before proceeding against the Common Securities Holder. The
Common Securities Holder shall execute such additional agreements as may be
necessary or desirable to give full effect to the foregoing. The Common
Securities Holder shall be subrogated to all rights (if any) of any
Beneficiary against the Issuer Trust in respect of any amounts paid to the
Beneficiaries by the Common Securities Holder; provided, however, that the
Common Securities Holder shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment hereunder, if, at the
time of any such payment, any amounts are due and unpaid hereunder.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement and the resignation or removal of any Issuer Trustee.
No Issuer Trustee or Paying Agent may claim any Lien on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Issuer Trustee (subject to Section 8.8(a)) and
any Paying Agent 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 Issuer Trust, and the Issuer 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 Issuer Trust, shall not be deemed wrongful or
improper. Neither the Depositor, any Paying Agent nor any Issuer Trustee
shall be obligated to present any particular investment or other opportunity
to the Issuer Trust even if such opportunity is of a character that, if
presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Issuer Trustee or any Paying Agent 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
Issuer Trustee or Paying Agent 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
Issuer 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 and eligible pursuant to the Trust
Indenture Act to act as such, and that has at the time of such appointment
securities rated in one of the three highest rating categories by a
nationally recognized statistical rating organization and a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section 8.7
and to the extent permitted by the Trust Indenture Act, 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 8.7,
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 hereunder 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 and that shall act through one or more persons authorized to
bind such entity.
Section 8.8 Conflicting Interests.
(a) 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.
(b) The Guarantee Agreement and the Indenture shall be deemed to
be specifically described in this Trust Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture
Act.
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, Depositor and the Administrative
Trustees, by agreed action of the majority of them shall have power to
appoint, and upon the written request of the Administrative Trustee and the
Depositor shall for such purpose join with the Administrative Trustees 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 8.9. Any co-trustee or separate trustee appointed pursuant to this
Section 8.9 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
principal place of business in the United States that shall act through one
or more persons authorized to bind such entity. If an Event of Default under
the Indenture shall have occurred and be continuing, the Property Trustee
alone shall have the power to make such appointment.
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 by one or more
Administrative Trustees, and the Trust Securities shall be delivered by the
Property Trustee, 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 Property Trustee
specified hereunder shall be exercised solely by the Property Trustee 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 8.9, 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 resigning or removed may be appointed in the
manner provided in this Section 8.9.
(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.
(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 Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer 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 by giving written notice thereof to the
Holders. If the instrument of acceptance by the successor Issuer Trustee
required by Section 8.11 shall not have been delivered to the Relevant
Trustee within 60 days after the giving of such notice of resignation, the
Relevant Trustee may petition, at the expense of the Depositor, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by Act of the
Holder of the Common Securities. If a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee or the Delaware Trustee, or
both of them, may be removed at such time by Act of the Holders of a Majority
in Liquidation Amount of the Capital Securities, delivered to the Relevant
Trustee (in its individual capacity and, in the case of the Property Trustee,
on behalf of the Issuer Trust). An Administrative Trustee may only be
removed by the Holder of the Common Securities and may be so removed at any
time.
If any Issuer Trustee shall resign, be removed or become incapable
of acting as Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any cause, at a time when no Debenture Event of Default
shall have occurred and be continuing, the Holder of the Common Securities,
by Act delivered to the retiring Issuer Trustee, shall promptly appoint a
successor Issuer Trustee or Issuer Trustees, and such successor Issuer
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 Capital Securities, by
Act of the Holders of a Majority in Liquidation Amount of the Capital
Securities delivered to the retiring Relevant Trustee, shall promptly appoint
a successor Relevant Trustee or Trustees, and such successor Issuer 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 Holder of the Common Securities by Act
delivered to the Administrative Trustee 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 Holder of the Common Securities or the Holders of a
Majority in Liquidation Amount of the Capital Securities, as the case may be,
and accepted appointment in the manner required by Section 8.11, any Holder
who has been a Holder of Trust Securities for at least six months may, on
behalf of such Holder and all others similarly situated, or any other Issuer
Trustee, may petition any court of competent jurisdiction for the appointment
of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer
Trustee to all Holders 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, if any Delaware Trustee who is a natural person dies or becomes,
in the opinion of the Depositor, incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (a) the
unanimous act of the remaining Administrative Trustees if there are at least
two of them or (b) otherwise by the Depositor (with the successor in either
case being a Person who satisfies the eligibility requirement for the
Delaware Trustee 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 Issuer 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
Issuer Trust by more than one Relevant Trustee, it being understood that
nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor 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 Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Issuer Trust.
Upon request of any Issuer Trustee or any such successor Relevant
Trustee, the retiring Relevant Trustee or the Issuer Trust, as the case may
be, shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as
the case may be.
No successor Relevant Trustee shall accept its appointment unless
at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 8.12 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 that such
Person shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor
or Issuer Trust.
If and when the Property Trustee shall be or become a creditor of
the Depositor or the Issuer Trust (or any other obligor upon the Capital
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor
or the Issuer Trust (or any such other obligor).
Section 8.14 Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar
judicial proceeding relative to the Issuer Trust or any other obligor upon
the Trust Securities or the property of the Issuer Trust 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 and
irrespective of whether the Property Trustee shall have made any demand on
the Issuer 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.
Section 8.15 Reports by Property Trustee.
(a) Not later than 60 days following May 15 of each year
commencing with May 15, 1998, the Property Trustee shall transmit to all
Holders in accordance with Section 10.8, and to the Depositor, a brief report
dated as of the immediately preceding December 31 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 December 31 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 Holders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each 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 8.16 Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees on behalf of
the Issuer Trust shall provide to the Property Trustee such documents,
reports and information as required by Section 314 of the Trust Indenture Act
(if any) and the compliance certificate required by Section 314(a) of the
Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act. Delivery of such reports,
information and documents to the Property Trustee is for informational
purposes only and the Property Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Issuer Trust's compliance with
any of its covenants hereunder (as to which the property Trustee is entitled
to rely exclusively on an Officer's Certificate).
Section 8.17 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of
the Issuer Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Trust
Agreement that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act. Any certificate or opinion required to be given by
an officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be
given in the form of an Officer's Certificate.
Section 8.18 Number of Issuer Trustees.
(a) The number of Issuer 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, provided further that the
Property Trustee and the Delaware Trustee may be the same Person if the
Property Trustee meets the requirements set forth in Section 8.7(c).
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall
not operate to annul, dissolve or terminate the Issuer Trust.
Section 8.19 Delegation of Power.
(a) Any Administrative Trustee, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
such Administrative Trustee's 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 Issuer
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.
Section 8.20 Appointment of Administrative Trustees.
(a) The Administrative Trustee shall initially be Xxxxxxx X.
Xxxxxxxxx, III and Xxxxxx X. Xxxxx, and their successors shall be appointed
by the Holder of all the Common Securities. The Administrative Trustees may
resign or be removed by the Holder of all the Common Securities at any time.
Upon any resignation or removal of an Administrative Trustee, the Depositor
shall appoint a successor Administrative Trustee. If at any time there is no
Administrative Trustee, the Property Trustee or any Holder who has been a
Holder of Trust Securities for at least six months may petition any court of
competent jurisdiction for the appointment of one or more Administrative
Trustees.
(b) Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with this Section 8.20, 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.
(c) Notwithstanding the foregoing or any other provision of this
Trust Agreement, if any Administrative Trustee who is a natural person dies
or becomes, in the opinion of the Holder of all the Common Securities,
incompetent or incapacitated, the vacancy created by such death, incompetence
or incapacity may be filled by the unanimous act of the remaining
Administrative Trustees, if there were at least two of them prior to such
vacancy, and by the Depositor, if there were not two such Administrative
Trustees immediately prior to such vacancy (with the successor being a Person
who satisfies the eligibility requirement for Administrative Trustees set
forth in Section 8.7).
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1 Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically
dissolve on July 1, 2047 (the "Expiration Date"), and shall thereafter be
terminated by filing a Certificate of Cancellation with the Secretary of
State of the State of Delaware, following the distribution of the Trust
Property in accordance with Section 9.4.
Section 9.2 Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event" upon the occurrence of which the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Holder of all the Common Securities or the
Depositor;
(b) the written direction to the Property Trustee from the Holder
of all the Common Securities at any time to dissolve the Issuer Trust and to
distribute the Debentures to Holders in exchange for the Capital Securities
(which direction is optional and wholly within the discretion of the Holder
of all the Common 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 Issuer Trust by a
court of competent jurisdiction.
Section 9.3 Termination.
The respective obligations and responsibilities of the Issuer
Trustees and the Issuer Trust created and continued hereby shall terminate
upon the latest to occur of the following: (a) the distribution by the
Property Trustee to Holders of all amounts required to be distributed
hereunder upon the liquidation of the Issuer Trust pursuant to Section 9.4,
or upon the redemption of all of the Trust Securities pursuant to
Section 4.2; (b) the payment of any expenses owed by the Issuer 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 Issuer Trust or the Holders.
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 Issuer Trust shall
be liquidated by the Issuer Trustees as expeditiously as the Issuer Trustees
determine to be possible by distributing, after satisfaction of liabilities
to creditors of the Issuer Trust as provided by Section 3808(e) of the
Delaware Business Trust Act and any other applicable law, to each Holder 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 less 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 such 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
Property Trustee and the Administrative Trustees shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the Debentures
to Holders, the Property Trustee, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall establish a
record date for such distribution (which shall be not more than 45 days prior
to the Liquidation Date) and 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
Trust Securities Certificates to the exchange agent for exchange, (iii) any
Trust Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid Distributions 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 (iv) all rights of Holders holding Trust Securities will
cease, except the right of such Holders to receive Debentures upon surrender
of Trust Securities Certificates.
(d) If, upon dissolution of the Trust, 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, or if an Early Termination Event specified in
clause (c) of Section 9.2 occurs, the Trust Property shall be liquidated by
the Property Trustee in such manner as the Property Trustee determines. In
such event, in connection with the winding-up of the Issuer Trust, Holders
will be entitled to receive out of the assets of the Issuer Trust available
for distribution to Holders, after satisfaction of liabilities to creditors
of the Issuer Trust as provided by Section 3808(e) of the Delaware Business
Trust Act and other 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 winding up, the Liquidation Distribution can be paid only in part
because the Issuer 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 Issuer Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The
Holder of all the Common Securities will be entitled to receive Liquidation
Distributions upon any such winding-up pro rata (determined as aforesaid)
with Holders of Capital Securities, except that, if a Debenture Event of
Default specified in Section 5.1(1) or 5.1(2) of the Indenture has occurred
and is continuing, the Capital Securities shall have a priority over the
Common Securities as provided in Section 4.3.
Section 9.5 Mergers, Consolidations, Amalgamations or Replacements
of Issuer Trust.
The Issuer Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to any corporation or other body,
except pursuant to Section 9.4 or this Section 9.5. At the request of the
Holder of all the Common Securities, with the consent of the Administrative
Trustees, but without the consent of the Holders of the Outstanding Capital
Securities, the Property Trustee and the Delaware Trustee, the Issuer 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
Issuer 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 have the same priority as the Capital Securities 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 that then assigns a rating to 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 substantially identical to that of the Issuer
Trust, (vi) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Issuer Trust has received an Opinion of
Counsel to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Capital Securities
(including any Successor Securities) in any material respect, and
(b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Issuer Trust nor such successor
entity will be required to register as an "investment company" under the
Investment Company Act, and (vii) the Depositor or its permitted transferee
owns all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least
to the extent provided by the Guarantee Agreement. Notwithstanding the
foregoing, the Issuer Trust shall not, except with the consent of holders of
all 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 Issuer Trust or the successor entity to be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, incapacity,
dissolution, termination or bankruptcy of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to annul,
dissolve or terminate this Trust Agreement, nor entitle the legal
representatives, successors or heirs of such Person or any Holder 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
Property Trustee, the Administrative Trustees, the Delaware Trustee and the
Holder of the Common Securities, without the consent of the Holders of the
Capital Securities, (i) to cure any ambiguity, correct or supplement any
provision herein that 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 Issuer Trust will not be taxable as a corporation or will
be classified as a grantor trust for United States federal income tax
purposes at all times that any Trust Securities are Outstanding or to ensure
that the Issuer Trust will not be required to register as an "investment
company" under the Investment Company Act; provided, however, that in either
case (i) or (ii) such action shall not adversely affect in any material
respect the interests of any Holder.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Property Trustee, the
Administrative Trustees and the Holder of the Common Securities, without the
consent of the Delaware Trustee, and with (i) the consent of Holders of at
least a Majority in Liquidation Amount of the Capital Securities, and
(ii) receipt by the Issuer Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the Issuer
Trustees in accordance with such amendment will not cause the Issuer Trust to
be taxable as a corporation or as other than a grantor trust for United
States federal income tax purposes or affect the Issuer Trust's exemption
from status as an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder, 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 Holder to institute suit
for the enforcement of any such payment on or after such date; and
notwithstanding any other provision herein, without the unanimous consent of
the Holders, this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement,
no Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement that would cause the Issuer Trust to fail or cease to qualify for
the exemption from status as an "investment company" under the Investment
Company Act or to be taxable as a corporation or to be classified as other
than a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, (i) without the consent of the Depositor and the Administrative
Trustees, this Trust Agreement may not be amended in a manner that imposes
any additional obligation on the Depositor or the Administrative Trustees,
and (ii) without the consent of the Delaware Trustee, this Trust Agreement
may not be amended in a manner that imposes any additional obligation on the
Delaware Trustee.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees or the Property Trustee 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 that 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 Officer's
Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
Section 10.3 Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 10.4 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR AND THE ISSUER 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 LAW PROVISIONS.
To the fullest extent permitted by Delaware law, there shall not be
applicable to the Issuer Trust, the Issuer Trustees or this Trust Agreement
any provisions of law (whether statutory or common) of the State of Delaware
pertaining to trusts (other than the Delaware Business Trust Act) that relate
to or regulate in a manner inconsistent with the terms hereof (a) the filing
with any court or governmental body or agent of trustee accounts or schedules
of trustee fees and charges, (b) affirmative requirements to post bonds for
trustees, officers, agents or employees of a trust, (c) the acquisition,
holding or disposition of any property, (d) the allocation of receipts and
expenditures between income and principal, (e) restrictions or limitation on
the permissible nature, amount or concentration of trust investment or
requirements relating to the titling, storage or other manner of holding or
investing trust assets, or (f) the establishment of fiduciary or other
standards of responsibility or limitations on the acts or powers of trustees
that are inconsistent (whether more or less restrictive) with this provision.
Section 10.5 Payments Due on Non-Business 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 Sections 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
Distributions shall accumulate on such unpaid amount 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 Issuer Trust and any Issuer
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.
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.
(a) Any report, notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon any Holder 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
Holder's name and address may appear on the Securities Register; and (b) in
the case of the Holder of the Common Securities or the Depositor, to First
Hawaiian, Inc., First Hawaiian Center, 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx
00000, Attention: Secretary, facsimile no.: (000) 000-0000, or to such other
address as may be specified in a written notice by the Holder of the Common
Securities or the Depositor, as the case may be, to the Property Trustee.
Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission. Such notice, demand or other
communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Depositor.
(b) Any notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon the Issuer Trust or any Issuer Trustee 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 the Property Trustee to The First National Bank
of Chicago, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-
0126, Attention: Corporate Trust Services Division; (b) with respect to the
Delaware Trustee, to First Chicago Delaware Inc., 000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx; (c) in the case
of the Administrative Trustees, to them at the address above for notices to
the Depositor, marked "Attention: Administrative Trustees of First Hawaiian
Capital I"; and (d) in the case of the Issuer Trust, to its principal
executive office specified in Section 2.2, with a copy to each of the
Property Trustee, the Delaware Trustee and the Administrative Trustees, or,
in each such case, to such other address as may be specified in a written
notice by the applicable Person to the Property Trustee, the Depositor and
the Holders. Such notice, demand or other communication to or upon the
Property Trustee, the Delaware Trustee, the Administrative Trustees or the
Issuer Trust shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Property Trustee, the Delaware
Trustee, such Administrative Trustees or the Issuer Trust, as the case may
be.
Section 10.9 Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit
of the Holders that, until at least one year and one day after the Issuer
Trust has been terminated in accordance with Article IX, they shall not file,
or join in the filing of, a petition against the Issuer Trust under any
bankruptcy, insolvency, reorganization or other similar law (including the
United States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise
join in the commencement of any proceeding against the Issuer Trust under any
Bankruptcy Law. The Property Trustee and the Depositor agree, for the
benefit of Holders, that if the Depositor or any Issuer Trustee takes action
in violation of this Section 10.9, then at the expense of the Depositor, the
Property Trustee or Depositor, as the case may be, shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Issuer 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 estopped and precluded therefrom and
such other defenses, if any, as counsel for the Issuer Trustees or the Issuer
Trust may assert.
Section 10.10 Trust Indenture Act; Conflict with Trust Indenture
Act.
(a) Except as otherwise expressly provided herein, 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, and this Trust Agreement, the Depositor and the
Property Trustee shall be deemed for all purposes hereof to be subject to and
governed by the Trust Indenture Act to the same extent as would be the case
if this Trust Agreement were qualified under that Act on the date hereof.
Except as otherwise expressly provided herein, if and to the extent that any
provision of this Trust Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
(b) The Property Trustee shall be the only Issuer Trustee that is
a trustee for the purposes of the Trust Indenture Act.
(c) 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
Issuer Trust.
Section 10.11 Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL
INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT, THE GUARANTEE AGREEMENT, IF APPLICABLE, THE INDENTURE,
REGISTRATION RIGHTS AGREEMENT, DATED OF EVEN DATE HEREWITH, AMONG THE ISSUER
TRUST, THE DEPOSITOR AND THE PURCHASER NAMED THEREIN AND AN AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH
HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT
SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND
SUCH HOLDER AND SUCH OTHERS.
This Trust Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amended
and Restated Trust Agreement as of the day and year first above written.
FIRST HAWAIIAN, INC.,
as Depositor
By:/s/ Xxxxxxx X. Xxxxxxxxx III
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx III
Title: Assistant Treasurer
THE FIRST NATIONAL BANK OF
CHICAGO,
as Property Trustee
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By:/s/ Xxxxxxx X. Xxxxxxxxx III
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx III
Title: Administrative Trustee
By:/s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Administrative Trustee
Exhibit A
[CERTIFICATE OF TRUST]
Exhibit B
[CERTIFICATE DEPOSITORY AGREEMENT]
Exhibit C
[Form of Common Securities Certificate]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE
OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
TRUST AGREEMENT.
Certificate Number Aggregate Liquidation Amount
C- $
-- --------
Certificate Evidencing Common Securities
of
First Hawaiian Capital I
___% Common Securities
(liquidation amount $1,000 per Common Security)
First Hawaiian Capital I, a statutory business trust created under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
[NAME OF HOLDER] (the "Holder") is the registered owner of __________ (____)
common securities (aggregate Liquidation Amount ______________________
($__________) of the Issuer Trust representing common undivided beneficial
interests in the assets of the Issuer Trust and designated the ___% Common
Securities (liquidation amount $1,000 per Common Security) (the "Common
Securities"). Except in accordance with Section 5.11 of the Trust Agreement
(as defined below) the Common Securities are not transferable and any
attempted transfer hereof other than in accordance therewith shall be void.
The designations, rights, privileges, restrictions, preferences and other
terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall
in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Issuer Trust, dated as of June __, 1997, as
the same may be amended from time to time (the "Trust Agreement"), among
First Hawaiian, Inc., a Delaware corporation, as Depositor, The First
National Bank of Chicago, as Property Trustee, First Chicago Delaware Inc.,
as Delaware Trustee, the Administrative Trustees named therein and the
holders, from time to time, of undivided beneficial interests in the assets
of the Issuer Trust, including the designation of the terms of the Common
Securities as set forth therein. The Issuer Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the
Issuer Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in
the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Issuer Trust has executed this certificate this _____ day of __________,
____.
First Hawaiian Capital I
By:
--------------------------------------
Name:
Title: Administrative Trustee
Exhibit D
---------
[Form of Capital Securities Certificate]
[If the Capital Securities Certificate is to be a Book-Entry
Capital Securities Certificate, insert---This Capital Securities Certificate
is a Book-Entry Capital Securities Certificate within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of a
Clearing Agency or a nominee of a Clearing Agency. This Capital Securities
Certificate is exchangeable for Capital Securities Certificates registered in
the name of a person other than the Clearing Agency or its nominee only in
the limited circumstances described in the Trust Agreement and may not be
transferred except as a whole by the Clearing Agency to a nominee of the
Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency
or another nominee of the Clearing Agency, except in the limited
circumstances described in the Trust Agreement.
Unless this Capital Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to First Hawaiian Capital I or its agent for
registration of transfer, exchange or payment, and any Capital Security
Certificate issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO EVIDENCE A
RESTRICTED CAPITAL SECURITY, INSERT -- THIS CAPITAL SECURITY (OR ANY
PREDECESSOR) AND ANY JUNIOR SUBORDINATED DEBENTURES ISSUABLE IN CONNECTION
THEREWITH HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS
CAPITAL SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS CAPITAL SECURITY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A,
REGULATION S OR ANOTHER EXEMPTION THEREUNDER. THE HOLDER OF THIS CAPITAL
SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES AND AGREES FOR
THE BENEFIT OF THE ISSUER TRUST THAT: (I) IT HAS ACQUIRED A "RESTRICTED"
SECURITY WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II) IT
WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS CAPITAL SECURITY
EXCEPT (A) TO THE CORPORATION, (B) FOR SO LONG AS THIS CAPITAL SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER APPLICABLE
JURISDICTIONS; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THIS CAPITAL SECURITY OF THE RESALE
RESTRICTIONS SET FORTH IN (II) ABOVE. ANY OFFER, SALE, PLEDGE OR OTHER
DISPOSITION PURSUANT TO THE FOREGOING CLAUSE (II)(C) AND (D) IS SUBJECT TO
THE RIGHT OF THE ISSUER OF THIS CAPITAL SECURITY AND THE PROPERTY TRUSTEE FOR
SUCH CAPITAL SECURITIES TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.
SECURITIES OWNED BY AN INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL
BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM AND MAY NOT BE TRANSFERRED WITHOUT
CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS, AS
PROVIDED IN THE TRUST AGREEMENT REFERRED TO BELOW. THE SECURITIES EVIDENCED
HEREBY ARE SUBJECT TO THE TERMS OF A REGISTRATION RIGHTS AGREEMENT, DATED OF
EVEN DATE HEREWITH, AMONG THE ISSUER TRUST, THE DEPOSITOR AND THE PURCHASER
NAMED THEREIN.]
[If the Security is subject to an agreement providing for
the exchange on registration pursuant to the Securities Act, insert --- THE
HOLDER OF THIS CAPITAL SECURITY AND ANY JUNIOR SUBORDINATED DEBENTURES
ISSUABLE IN CONNECTION THEREWITH, IS DEEMED, BY SUCH HOLDER'S ACCEPTANCE OF
THIS SECURITY, TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF THE
REGISTRATION RIGHTS AGREEMENT, DATED OF EVEN DATE HEREWITH, AMONG THE ISSUER
TRUST, THE DEPOSITOR AND THE PURCHASER NAMED THEREIN.]
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
(EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE THE ASSETS OF ANY
SUCH PLAN ("PLAN ASSETS") BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A
"PLAN ASSET ENTITY"), AND NO PERSON INVESTING PLAN ASSETS OF ANY PLAN, MAY
ACQUIRE OR HOLD THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST HEREIN,
UNLESS THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR
84-14 OR ANOTHER APPLICABLE EXEMPTION APPLIES TO SUCH PURCHASE AND HOLDING
AND HAS COMPLIED WITH ANY REQUEST BY THE CORPORATION OR THE ISSUER TRUST FOR
CONFIRMATION OF THE APPLICABILITY OF PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14
OR, ABSENT SUCH CONFIRMATION, AN OPINION OF COUNSEL OR OTHER EVIDENCE WITH
RESPECT TO THE APPLICABILITY OF ANOTHER EXEMPTION. ANY PURCHASER OR HOLDER
OF THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED
TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT EITHER (A) IT IS
NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON
BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, OR (B) THE EXEMPTIVE RELIEF
AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION APPLIES TO SUCH PURCHASE AND HOLDING.
Certificate Number Aggregate Liquidation Amount
P- $
-- -------
CUSIP NO.
------------------
Certificate Evidencing Capital Securities
of
First Hawaiian Capital I
_____% Capital Securities, Series A
(liquidation amount $1,000 per Capital Security)
First Hawaiian Capital I, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that _____________________________ (the "Holder") is the registered
owner of _________________ (____) capital securities (aggregate Liquidation
Amount ____________________ ($________)) of the Issuer Trust representing an
undivided beneficial interest in the assets of the Issuer Trust and
designated the _____% Capital Securities, Series A (liquidation amount $1,000
per Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Issuer Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.5 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities are set forth in, and this certificate and the Capital Securities
represented hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of June __, 1997, as the same may be amended from time
to time (the "Trust Agreement"), among First Hawaiian, Inc. (the
"Corporation"), a Delaware corporation, as Depositor, The First National Bank
of Chicago, as Property Trustee, First Chicago Delaware Inc, as Delaware
Trustee, and the Administrative Trustees named therein and the holders, from
time to time, of undivided beneficial interests in the assets of the Issuer
Trust, including the designation of the terms of the Capital Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement, dated as of June __, 1997 (the "Guarantee Agreement"), entered
into by First Hawaiian, Inc. and The First National Bank of Chicago, as
guarantee trustee, to the extent provided therein. The Issuer Trust will
furnish a copy of the Trust Agreement and the Guarantee Agreement to the
Holder without charge upon written request to the Issuer Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of
the Issuer Trust has executed this certificate this _____ day of __________,
____.
First Hawaiian Capital I
By:
------------------------------
Name:
Title: Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security to:
----------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
----------------------------------------------------
----------------------------------------------------------------------------
agent to transfer this Capital Securities Certificate on the books of the
Issuer Trust. The agent may substitute another to act for him or her.
Date:
-----------------
Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side
of this Capital Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
Exhibit E
[Form of Restricted Securities Certificate]
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 5.5(b) of the Trust Agreement)
[_________________________],
as Security Registrar
[address]
Re: _____% Capital Securities, Series A of First
Hawaiian Capital I
(the "Issuer Trust") (the "Capital Securities")
Reference is made to the Amended and Restated Trust
Agreement, dated as of June __, 1997 (the "Trust Agreement"), among First
Hawaiian, Inc., a Delaware corporation, as Depositor, The First National Bank
of Chicago, as Property Trustee, First Chicago Delaware, Inc., as Delaware
Trustee, and the Administrative Trustees named therein. Terms used herein
and defined in the Trust Agreement or in Regulation S, Rule 144A or Rule 144
under the U.S. Securities Act of 1933, as amended (the "Securities Act"),
are used herein as so defined.
This certificate relates to $_____________ aggregate
Liquidation Amount of Capital Securities, which are evidenced by the
following certificate(s) (the "Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
CURRENTLY IN BOOK-ENTRY FORM: _____ Yes _____ No (check
one)
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them
to do so. Such beneficial owner or owners are referred to herein
collectively as the "Owner". If the Specified Securities are represented by
a Book-Entry Capital' Securities Certificate, they are held through the
Clearing Agency or a Clearing Agency Participant in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are
not represented by a Book-Entry Capital Securities Certificate, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to another person (the "Transferee"). In connection with such
transfer, the Owner hereby certifies that, unless such transfer is being
effected pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 144A, Rule 904, Rule 144 or
another available exemption from registration under the Securities Act and
all applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected
in accordance with Rule 144A:
(A) the Specified Securities are being transferred
to a person that the Owner and any person acting on its
behalf reasonably believe is a "qualified institutional
buyer" within the meaning of Rule 144A, acquiring for its
own account or for the account of a qualified institutional
buyer; and
(B) the Owner and any person acting on its behalf
have taken reasonable steps to ensure that the Transferee is
aware that the Owner may be relying on Rule 144A in
connection with the transfer.
(2) Rule 904 Transfers. If the transfer is being effected
in accordance with Rule 904:
(A) the Owner is not a distributor of the
Securities, an affiliate of the Depositor or the Issuer
Trust or any such distributor or a person acting on behalf
of any of the foregoing;
(B) the offer of the Specified Securities was not
made to a person in the United States;
(C) either;
(i) at the time the buy order was
originated, the Transferee was outside the United
States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was
outside the United States, or
(ii) the transaction is being executed in,
on or through the facilities of the Eurobond market,
as regulated by the Association of International
Bond Dealers, or another designated offshore
securities market and neither the Owner nor any
person acting on its behalf knows that the
transaction has been prearranged with a buyer in the
United States;
(D) no directed selling efforts have been made in
the United States by or on behalf of the Owner or any
affiliate thereof; and
(E) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities
Act.
(3) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding
period of at least two years (computed in accordance with
paragraph (d) of Rule 144) has elapsed since the date the
Specified Securities were acquired from the Depositor or the
Issuer Trust or from an affiliate (as such term is defined
in Rule 144) of the Depositor or the Issuer Trust, whichever
is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of
paragraphs (e), (f) and (h) of Rule 144; or
(B) the transfer is occurring after a holding
period of at least three years has elapsed since the date
the Specified Securities were acquired from the Depositor or
the Issuer Trust or from an affiliate (as such term is
defined in Rule 144) of the Depositor or the Issuer Trust,
whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the
Depositor or the Issuer Trust.
(4) Other Exemption from Registration. If the transfer is
being effected pursuant to an available exemption from registration
under the Securities Act other than (1), (2) and (3) above:
(A) either (i) the Owner is a "qualified
institutional buyer" within the meaning of Rule 144A or (ii)
the Owner did not acquire the Specified Securities from the
Purchaser when such Capital Securities were initially
issued; and
(B) State basis for such other available exemption:
-----------------------------------------------------------
-----------------------------------------------------------
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This certificate and the statements contained herein are
made for your benefit and the benefit of the Depositor, the Issuer Trust and
the Purchaser.
Dated:
---------------------------------
(Print the name of the
Undersigned, as such term is
defined in the second paragraph of
this certificate.)
By:
-------------------------------
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the person
signing on behalf of the
Undersigned must be stated.)
FIRST HAWAIIAN CAPITAL I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
(Section) 310 (a)(1) . . . . . . . . . . . . . . . . . 8.7
(a)(2) . . . . . . . . . . . . . . . . . 8.7
(a)(3) . . . . . . . . . . . . . . . . . 8.9
(a)(4) . . . . . . . . . . . . . . . . . 2.7(a)(ii)
(b) . . . . . . . . . . . . . . . . . . . 8.8
(Section) 311 (a . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . 8.14
(Section) 312 (a) . . . . . . . . . . . . . . . . . . . 5.8
(b) . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . 5.8
(Section) 313 (a) . . . . . . . . . . . . . . . . . . . 8.15(a)
(a)(4) . . . . . . . . . . . . . . . . . 8.15(b)
(b) . . . . . . . . . . . . . . . . . . . 8.15(b)
(c) . . . . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . . . . 8.15(c)
(Section) 314 (a) . . . . . . . . . . . . . . . . . . . 8.16
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . 8.17
(c)(2) . . . . . . . . . . . . . . . . . 8.17
(c)(3) . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 1.1, 8.17
(Section) 315 (a) . . . . . . . . . . . . . . . . . . . 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . . . . . 8.2, 10.9
(c) . . . . . . . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . . . . . . . 8.1, 8.3
(e) . . . . . . . . . . . . . . . . . . . Not Applicable
(Section) 316 (a) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 5.13
(c) . . . . . . . . . . . . . . . . . . . 6.7
(Section) 317 (a)(1) . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 5.10
(Section) 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.
