Exhibit 4.27
NEXTEL CAPITAL TRUST [I/II/III]
AMENDED AND RESTATED
TRUST AGREEMENT
among
NEXTEL COMMUNICATIONS, INC., as Depositor,
_______________, as Property Trustee,
_______________, as Delaware Trustee,
and
_______________, _______________ and _______________,
as Administrative Trustees
Dated as of ________, 200_
NEXTEL CAPITAL TRUST [I/II/III]
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Section Trust Agreement Section
Section 310(a)(1)...........................................................8.07
(a)(2)..............................................................8.07
(a)(3)..............................................................8.09
(a)(4)....................................................Not Applicable
(b).................................................................8.08
Section 311(a)..............................................................8.13
(b) ................................................................8.13
Section 312(a)..............................................................5.07
(b).................................................................5.07
(c).................................................................5.07
Section 313(a)...........................................................8.14(a)
(a)(4)...........................................................8.14(b)
(b)..............................................................8.14(b)
(c)..............................................................8.14(a)
(d).....................................................8.14(a), 8.14(b)
Section 314(a)..............................................................8.15
(b).......................................................Not Applicable
(c)(1)........................................................8.15, 8.16
(c)(2)..............................................................8.16
(c)(3)....................................................Not Applicable
(d).......................................................Not Applicable
(e).................................................................8.16
Section 315(a)..............................................................8.01
(b)........................................................8.02, 8.14(b)
(c)..............................................................8.01(a)
(d)...........................................................8.01, 8.03
(e).......................................................Not Applicable
Section 316(a)....................................................Not Applicable
(a)(1)(A)...........................................................8.19
(a)(1)(B)...........................................................8.19
(a)(2)....................................................Not Applicable
(b).......................................................Not Applicable
(c).......................................................Not Applicable
Section 317(a)(1) ................................................Not Applicable
(a)(2)....................................................Not Applicable
(b).................................................................5.09
Section 318(a).............................................................10.08
Note: This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms and
provisions.
TABLE OF CONTENTS
Page
ARTICLE I DEFINED TERMS...............................................................1
Section 1.01 Definitions............................................................1
ARTICLE II ESTABLISHMENT OF THE TRUST................................................10
Section 2.01 Name..................................................................10
Section 2.02 Offices of the Trustees; Principal Place of Business..................11
Section 2.03 Initial Contribution of Trust Property; Organizational Expenses.......11
Section 2.04 Issuance of the Preferred Securities..................................11
Section 2.05 Subscription and Purchase of Junior Subordinated Debt
Securities; Issuance of the Common Securities.........................11
Section 2.06 Declaration of Trust..................................................12
Section 2.07 Authorization to Enter into Certain Transactions......................12
Section 2.08 Assets of Trust.......................................................17
Section 2.09 Title to Trust Property...............................................17
Section 2.10 Mergers and Consolidations of the Trust...............................18
ARTICLE III PAYMENT ACCOUNT..........................................................19
Section 3.01 Payment Account.......................................................19
ARTICLE IV DISTRIBUTIONS; REDEMPTION; EXCHANGE.......................................19
Section 4.01 Distributions.........................................................19
Section 4.02 Redemption............................................................20
Section 4.03 Subordination of Common Securities....................................22
Section 4.04 Payment Procedures....................................................23
Section 4.05 Tax Returns and Reports...............................................23
Section 4.06 Payments under the Indenture..........................................23
Section 4.07 Exchange of Preferred Securities......................................23
Section 4.08 Withholding...........................................................24
ARTICLE V TRUST SECURITIES CERTIFICATES..............................................25
Section 5.01 Initial Ownership.....................................................25
Section 5.02 The Trust Securities Certificates.....................................25
Section 5.03 Execution and Delivery of Trust Securities Certificates...............25
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates...............................................25
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates..........................................................26
Section 5.06 Persons Deemed Securityholders........................................26
Section 5.07 Access to List of Securityholders' Names and Addresses................27
Section 5.08 Maintenance of Office or Agency.......................................27
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Section 5.09 Appointment of Paying Agent...........................................27
Section 5.10 Ownership of Common Securities by Depositor...........................28
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate................................................28
Section 5.12 Notices to Clearing Agency............................................29
Section 5.13 Definitive Preferred Securities Certificates..........................29
Section 5.14 Rights of Securityholders.............................................30
ARTICLE VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING.................................30
Section 6.01 Limitations on Voting Rights..........................................30
Section 6.02 Notice of Meetings....................................................31
Section 6.03 Meetings of Holders of Preferred Securities...........................31
Section 6.04 Voting Rights.........................................................32
Section 6.05 Proxies, etc..........................................................32
Section 6.06 Securityholder Action by Written Consent..............................32
Section 6.07 Record Date for Voting and Other Purposes.............................32
Section 6.08 Acts of Securityholders...............................................33
Section 6.09 Inspection of Records.................................................34
ARTICLE VII REPRESENTATIONS AND WARRANTIES...........................................34
Section 7.01 Representations and Warranties of the Bank and the
Property Trustee......................................................34
Section 7.02 Representations and Warranties of the Delaware Bank and
the Delaware Trustee..................................................35
Section 7.03 Representations and Warranties of the Depositor.......................36
ARTICLE VIII THE TRUSTEES............................................................36
Section 8.01 Certain Duties and Responsibilities...................................36
Section 8.02 Certain Notices.......................................................38
Section 8.03 Certain Rights of Property Trustee....................................38
Section 8.04 Not Responsible for Recitals or Issuance of Securities................41
Section 8.05 May Hold Securities...................................................41
Section 8.06 Compensation; Fees; Indemnity.........................................41
Section 8.07 Trustees Required; Eligibility........................................42
Section 8.08 Conflicting Interests.................................................43
Section 8.09 Co-Trustees and Separate Trustee......................................43
Section 8.10 Resignation and Removal; Appointment of Successor.....................44
Section 8.11 Acceptance of Appointment by Successor................................46
Section 8.12 Merger, Conversion, Consolidation or Succession to Business...........46
Section 8.13 Preferential Collection of Claims Against Depositor or Trust..........46
Section 8.14 Reports by Property Trustee...........................................47
Section 8.15 Reports to the Property Trustee.......................................47
Section 8.16 Evidence of Compliance with Conditions Precedent......................47
Section 8.17 Number of Trustees....................................................47
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Section 8.18 Delegation of Power...................................................48
Section 8.19 Voting................................................................48
Section 8.20 Enforcement of Rights of Property Trustee by Securityholders..........48
ARTICLE IX TERMINATION AND LIQUIDATION...............................................49
Section 9.01 Dissolution...........................................................49
Section 9.02 Termination...........................................................49
Section 9.03 Certificate of Cancellation...........................................49
Section 9.04 Liquidation...........................................................50
ARTICLE X MISCELLANEOUS PROVISIONS...................................................51
Section 10.01 Limitation of Rights of Securityholders...............................51
Section 10.02 Amendment.............................................................51
Section 10.03 Separability..........................................................53
Section 10.04 Governing Law.........................................................53
Section 10.05 Successors............................................................53
Section 10.06 Headings..............................................................53
Section 10.07 Notice and Demand.....................................................53
Section 10.08 Conflict with Trust Indenture Act.....................................54
Section 10.09 Acceptance of Terms of Trust Agreement, Guarantees and
Subordinated Indenture................................................54
Section 10.10 Execution of Counterparts.............................................54
EXHIBIT A Form of Common Securities Certificate
EXHIBIT B Form of Expense Agreement
EXHIBIT C Form of Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of
________, 200_, by and among (i) Nextel Communications, Inc., a Delaware
corporation (the "Depositor" or the "Company"), (ii) __________, a banking
corporation duly organized and existing under the laws of ____________, as
trustee (the "Property Trustee" and, in its separate corporate capacity and not
in its capacity as Trustee, the "Bank"), (iii) __________, as Delaware trustee
(the "Delaware Trustee" and, in its separate corporate capacity and not in its
capacity as Delaware Trustee, the "Delaware Bank"), (iv) __________, an
individual, __________, an individual, and __________, an individual, as
administrative trustees (each an "Administrative Trustee" and together the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the "Trustees") and (v) the
several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have heretofore
duly declared and established a statutory trust pursuant to the Delaware
Statutory Trust Act by the entering into that certain Trust Agreement, dated as
of ________ __, 2003 (the "Original Trust Agreement"), and by the execution and
filing by the Delaware Trustee with the Secretary of State of the State of
Delaware of the Certificate of Trust, dated ________ __, 2003; and
WHEREAS, the parties hereto desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the addition of the Bank, [individual], [individual] and
[individual] as trustees of the Trust, (ii) the acquisition by the Trust from
the Depositor of all of the right, title and interest in the Junior Subordinated
Debt Securities, (iii) the issuance of the Common Securities by the Trust to the
Depositor and (iv) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.01 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 I have the meanings
assigned to them in this Article I and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"ACT" has the meaning specified in Section 6.08.
"ADMINISTRATIVE TRUSTEE" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Trust
Agreement solely in their capacities as Administrative Trustees of the Trust
continued hereunder and not in their individual capacities, or such trustee's
successor(s) in interest in such capacity, or any successor "Administrative
Trustee" appointed as herein provided.
"AFFILIATE" means, with respect to any specified Person, 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.
"BANK" has the meaning specified in the preamble to this Trust
Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(i) 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 federal bankruptcy law or any
other applicable federal or state 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 such decree or order unstayed
and in effect for a period of 90 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the
Person to the institution of bankruptcy or insolvency
proceedings against the Person, or the filing by the Person of a
petition or answer or consent seeking reorganization or relief
under federal bankruptcy law or any other
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applicable federal or state law, or the consent by the Person to
the filing of 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 the Person of an assignment for the benefit of
creditors, or the admission by the Person in writing of its
inability to pay its debts generally as they become due, or the
taking of action by such Person in furtherance of any such
action.
"BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES" means
certificates representing Preferred Securities issued in global, fully
registered form to the Clearing Agency as described in Section 5.11.
"BUSINESS DAY" means a day other than (i) a Saturday or a
Sunday, (ii) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office or the Indenture Trustee's principal corporate trust
office is closed for business.
"CERTIFICATE DEPOSITORY AGREEMENT" means the agreement among the
Trust, the Property Trustee and The Depository Trust Company, as the initial
Clearing Agency, dated ________, ____, relating to the Preferred Securities, as
the same may be amended and supplemented from time to time.
"CERTIFICATE OF CANCELLATION" has the meaning specified in
Section 9.03.
"CLEARING AGENCY" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"CLOSING DATE" means the date of execution and delivery of this
Trust Agreement.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON SECURITY" means an undivided beneficial ownership
interest in the assets of the Trust, designated as a "Trust Common Security,"
having a Liquidation Amount of $___ and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
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"COMMON SECURITIES CERTIFICATE" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form attached
as Exhibit A.
"COMPANY" has the meaning specified in the preamble hereto.
"CORPORATE TRUST OFFICE" means the office of the Property
Trustee at which its corporate trust business shall be principally administered,
which office, as of the date of execution and delivery of this Trust Agreement,
is located at the address set forth in Section 10.07.
"DEFINITIVE PREFERRED SECURITIES CERTIFICATES" means either or
both (as the context requires) of (i) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"DELAWARE BANK" has the meaning specified in the preamble to
this Trust Agreement.
"DELAWARE STATUTORY TRUST ACT" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"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 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" means Nextel Communications, Inc., in its capacity
as "Depositor" under this Trust Agreement.
"DISTRIBUTION DATE" has the meaning specified in Section
4.01(a).
"DISTRIBUTIONS" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"EVENT OF DEFAULT" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of an Indenture Event of Default; or
(ii) default by the Trust in the payment of any
Distribution when it becomes due and payable, and continuation
of such default for a period of 30 days; or
4
(iii) default by the Trust in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable.
"EXPENSE AGREEMENT" means the Agreement as to Expenses and
Liabilities between the Company and the Trust, substantially in the form
attached hereto as Exhibit B, as amended from time to time.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case, as amended from time to time.
"EXTENSION PERIOD" has the meaning provided in Section 301 of
the Subordinated Indenture.
"FIDUCIARY INDEMNIFIED PERSON" has the meaning specified in this
Trust Agreement.
"GUARANTEE" means the Guarantee Agreement executed and delivered
by the Company and ________________________, as Guarantee Trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Preferred Securities, as amended from time to
time.
"INDENTURE EVENT OF DEFAULT" means an "Event of Default" as
defined in the Subordinated Indenture.
"INDENTURE REDEMPTION DATE" means "Redemption Date," as defined
in the Subordinated Indenture.
"INDENTURE TRUSTEE" means the trustee under the Subordinated
Indenture.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940, and any statute successor thereto, in each case, as amended from time to
time.
"INVESTMENT COMPANY EVENT" means the receipt by the Trust of an
Opinion of Counsel rendered by a nationally recognized independent law firm, to
the effect that, as a result of the occurrence of an amendment to or change in
applicable law or regulations, or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more than
an insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after the Issue Date.
"ISSUE DATE" means either the Closing Date or the Option Closing
Date, whichever applies.
"JUNIOR SUBORDINATED DEBT SECURITIES" means the $__________
aggregate principal amount of the Depositor's _______% Junior Subordinated Debt
Securities due __________, issued pursuant to the Subordinated Indenture, which
may be
5
increased by an additional amount not to exceed $__________ aggregate principal
amount of the Depositor's _______% Junior Subordinated Debt Securities due
__________ issued pursuant to the Subordinated Indenture, the Underwriters'
Overallotment Option and Section 2.05 herein.
"LEGAL ACTION" has the meaning specified in Section 2.07.
"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 (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Junior Subordinated Debt Securities to
be contemporaneously redeemed in accordance with the Subordinated Indenture and
the proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) Junior Subordinated Debt Securities having a principal
amount equal to the Liquidation Amount of the Trust Securities of the Holder to
whom such Junior Subordinated Debt Securities are distributed.
"LIQUIDATION AMOUNT" means the stated amount of $___ per Trust
Security.
"LIQUIDATION DATE" means the date on which Junior Subordinated
Debt Securities are to be distributed to Holders of Trust Securities in
connection with a dissolution and liquidation of the Trust pursuant to Section
9.04.
"LIQUIDATION DISTRIBUTION" has the meaning specified in Section
9.04.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the Property Trustee; provided, that the term
"Officers' Certificate" when used with reference to Administrative Trustees who
are natural persons shall mean a certificate signed by two or more of the
Administrative Trustees which otherwise satisfies the requirements below. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(i) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the
definitions relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
6
(iii) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Trust, a Trustee or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to Federal income tax matters may
rely on published rulings of the Internal Revenue Service.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the
recitals to this Trust Agreement.
"OUTSTANDING", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by an
Administrative Trustee or delivered to an Administrative Trustee
for cancellation;
(v) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited
with the Property Trustee or any Paying Agent for the Holders of
such Preferred Securities; provided, that if such Preferred
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Trust Agreement; and
(vi) Preferred Securities in exchange for or in lieu of
which other Preferred Securities have been delivered pursuant to
this Trust Agreement.
provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred Securities
have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder, Preferred Securities
owned by the Depositor, the Holder of the Common Securities, any Trustee
or any Affiliate of the Depositor or any Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether
any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only
Preferred Securities which such Administrative Trustee or a Responsible
Officer of the Property Trustee actually knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply to any time when
all of the
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outstanding Preferred Securities are owned by the Depositor, the Holder
of the Common Securities, one or more Trustees and/or any such
Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is
not the Depositor or any Affiliate or the Depositor.
"OWNER" means each Person who is the beneficial owner of a
Preferred Security evidenced by a Book-Entry Preferred Securities Certificate as
reflected in the records of the Clearing Agency or, if a Clearing Agency
Participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"PAYING AGENT" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be the Property Trustee.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for the benefit of
the Securityholders in which all amounts paid in respect of the Junior
Subordinated Debt Securities will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 4.01 and
4.02.
"PERSON" means an individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PREFERRED SECURITY" means an undivided beneficial ownership
interest in the assets of the Trust, designated as "___% Trust Preferred
Security" and having a Liquidation Amount of $___ and having rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"PREFERRED SECURITIES CERTIFICATE" means a certificate
evidencing ownership of a Preferred Security or Securities, substantially in the
form attached as Exhibit C.
"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 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.
"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 Indenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
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"REDEMPTION PRICE" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security,
plus accrued and unpaid Distributions to such date.
"RELEVANT TRUSTEE" shall have the meaning specified in Section
8.10.
"RESPONSIBLE OFFICER" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee
with direct responsibility for the administration of this Trust Agreement, and
also means, with respect to a particular corporate trust matter, any other
officer of the Property Trustee to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" are described
in Section 5.04.
"SECURITYHOLDER" or "HOLDER" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person being a beneficial owner of the Trust within the meaning of the Delaware
Statutory Trust Act.
"SPECIAL EVENT" means a Tax Event or an Investment Company
Event.
"SUBORDINATED INDENTURE" means the Subordinated Debt Securities
Indenture, dated as of ________, 200_, between the Depositor and the Indenture
Trustee, as amended or supplemented from time to time.
"TAX EVENT" means the receipt by the Trust of an Opinion of
Counsel rendered by a nationally recognized independent law firm, to the effect
that, as a result of (a) any amendment to, change in or announced prospective
change in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or (b) any
official administrative written decision or pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, or decision is announced on or after the Issue
Date, there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to the United States Federal
income tax with respect to income received or accrued on the Junior Subordinated
Debt Securities, (ii) interest payable by the Company on the Junior Subordinated
Debt Securities is not, or within 90 days of the date of such opinion will not
be, deductible, in whole or in part, by the Company for United States Federal
income tax purposes, or (iii) the Trust is, or will be within 90 days of the
date of such opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"TRUST" means the Delaware statutory trust continued hereby and
identified on the cover page to this Trust Agreement.
"TRUST AGREEMENT" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the
9
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Amended and Restated Trust Agreement and any modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"TRUSTEES" means the Persons identified as "Trustees" in the
preamble to this Trust Agreement solely in their capacities as Trustees of the
Trust continued hereunder and not in their individual capacities, or their
successor in interest in such trustee capacity, or any successor trustee
appointed as herein provided.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 and
any statute successor thereto, in each case, as amended from time to time.
"TRUST PROPERTY" means (i) the Junior Subordinated Debt
Securities, (ii) any cash on deposit in, or owing to, the Payment Account, and
(iii) all proceeds and rights in respect of the foregoing and any other property
and assets for the time being held or deemed to be held by the Property Trustee
pursuant to this Trust Agreement.
"TRUST SECURITIES CERTIFICATE" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"TRUST SECURITY" means any one of the Common Securities or the
Preferred Securities.
"UNDERWRITERS" means the underwriters named in the Underwriting
Agreement.
"UNDERWRITERS' OVERALLOTMENT OPTION" means the Underwriters'
option to purchase up to an additional _________ Preferred Securities pursuant
to the Underwriting Agreement.
"UNDERWRITERS' OVERALLOTMENT OPTION CLOSING DATE" or "OPTION
CLOSING DATE" means the closing of the transactions contemplated by the
Underwriters' Overallotment Option.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated
________, 200_, among the Trust, the Depositor and the Underwriters.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 Name. The Trust continued hereby shall be known as
"Nextel Capital Trust [I/II/III]", in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued. The Administrative Trustees may change
the name of the Trust from time to time following written notice to the Holders.
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Section 2.02 Offices of the Trustees; Principal Place of
Business. The address of the Property Trustee is _______________, or at such
other address as the Property Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of business of the
Delaware Trustee is c/o ____________, Attn: __________, or at such other address
in Delaware as the Delaware Trustee may designate by notice to the Depositor.
The address of the Administrative Trustees is c/o Nextel Communications, Inc.,
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate
Secretary. The principal place of business of the Trust is c/o Nextel
Communications, Inc., 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000. The
Depositor may change the principal place of business of the Trust at any time by
giving notice thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property;
Organizational Expenses. The Delaware Trustee acknowledges receipt in trust from
the Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse the Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.04 Issuance of the Preferred Securities.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, are authorized to execute and
deliver to the Underwriters Preferred Securities Certificates, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of
__________ Preferred Securities having an aggregate Liquidation Amount of
$__________, against receipt of the aggregate purchase price of such Preferred
Securities of $__________, which amount the Administrative Trustees shall
promptly deliver to the Property Trustee. In addition, in connection with the
Underwriters' Overallotment Option, the Administrative Trustees, on behalf of
the Trust, are authorized to execute and deliver to the Underwriters Preferred
Securities Certificates, registered in the name of the nominee of the initial
Clearing Agency, in an additional aggregate amount of up to __________ Preferred
Securities having an aggregate Liquidation Amount of up to $__________, against
receipt of the aggregate purchase price of such Preferred Securities, which
amount the Administrative Trustees shall promptly deliver to the Property
Trustee.
Section 2.05 Subscription and Purchase of Junior Subordinated
Debt Securities; Issuance of the Common Securities.
(a) Contemporaneously with the execution and delivery of this
Trust Agreement, the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the Depositor Common Securities Certificates, registered
in the name of the Depositor, in an aggregate amount of __________ Common
Securities having an aggregate Liquidation Amount of $__________, against
payment by the Depositor of such amount, which amount the Administrative
Trustees shall promptly deliver to the Property Trustee. Contemporaneously
therewith, the Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Junior Subordinated Debt Securities,
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registered in the name of the Property Trustee, on behalf of the Trust and the
Holders, and having an aggregate principal amount equal to $__________, and in
satisfaction of the purchase price for such Junior Subordinated Debt Securities,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of the amounts received from the Administrative Trustees pursuant to the
first sentence of Section 2.04 and the first sentence of this Section 2.05(a).
(b) If the Underwriters' Overallotment Option is exercised and
there is an Option Closing Date, then an Administrative Trustee, on behalf of
the Trust, shall execute and deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, in an additional
aggregate amount of Common Securities having an aggregate Liquidation Amount of
up to $________ against payment by the Depositor of such amount, which amount
the Administrative Trustees shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor, additional Junior
Subordinated Debt Securities, registered in the name of the Property Trustee, on
behalf of the Trust and the Holders, and having an aggregate principal amount of
up to $________, and, in satisfaction of the purchase price of such Junior
Subordinated Debt Securities, the Property Trustee, on behalf of the Trust,
shall deliver to the Depositor an amount equal to the sum of the amounts
received from the Administrative Trustees pursuant to the last sentence of
Section 2.04 and the first sentence of this Section 2.05(b).
Section 2.06 Declaration of Trust. The exclusive purposes and
functions of the Trust are (i) to issue and sell the Trust Securities and use
the proceeds from such sale to acquire the Junior Subordinated Debt Securities,
and (ii) to engage in those activities deemed necessary, incidental, appropriate
or convenient thereto by the Property Trustee or the Administrative Trustees,
including, without limitation, those activities specified in this Trust
Agreement. The Depositor hereby appoints each of the Bank, the Delaware Bank,
[Individual], [Individual] and [Individual] as trustees of the Trust, as
described herein, to have all the rights, powers and duties to the extent set
forth herein. The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
benefit of the Trust and the Securityholders. The Trustees shall have all
rights, powers, authority and authorization set forth herein and in accordance
with applicable law with respect to accomplishing the purposes of the Trust. The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the Trustees for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) of the Delaware Statutory Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions.
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Trust Agreement. Subject to the limitations set forth in paragraph C of
this Section 2.07 in accordance with the following paragraphs A and B, the
Administrative Trustees and the Property Trustee, as the case may be, shall have
the authority to enter into all transactions and agreements determined by such
Trustees to be appropriate in exercising the authority,
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express or implied, otherwise granted to such Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting
singly or jointly, shall have the exclusive power, duty and authority to act on
behalf of the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Debt Securities
with the proceeds of the sale of the Trust Securities; provided,
however, the Administrative Trustees shall cause legal title to
all of the Junior Subordinated Debt Securities to be vested in,
and the Junior Subordinated Debt Securities to be held of record
in the name of, the Property Trustee for the benefit of the
Trust and Holders of the Trust Securities;
(ii) to establish a record date with respect to all
actions to be taken hereunder that require a record date be
established, including for the purposes of Section 316(c) of the
Trust Indenture Act and with respect to Distributions, voting
rights, redemptions, and exchanges, and to issue relevant
notices to Holders of the Trust Securities as to such actions
and applicable record dates;
(iii) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust ("Legal Action"), unless
pursuant to Section 2.07(B)(v), the Property Trustee has the
power to bring such Legal Action;
(iv) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers,
contractors, advisors, and consultants and pay reasonable
compensation for such services;
(v) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(vi) to give the certificate to the Property Trustee
required by Section 314(a)(4) of the Trust Indenture Act, which
certificate may be executed by any Administrative Trustee;
(vii) to take all actions and perform such duties as may
be required of the Administrative Trustees pursuant to the terms
of this Trust Agreement;
(viii) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges as a
statutory trust under the laws of the State of Delaware and of
each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders of the Trust
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Securities or to enable the Trust to effect the purposes for
which the Trust has been created;
(ix) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared, executed and filed by the Administrative Trustees, on
behalf of the Trust;
(x) to issue and sell the Trust Securities;
(xi) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository Agreement and such
other agreements as may be necessary or desirable in connection
with the consummation of this Trust Agreement;
(xii) to assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(xiii) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the
preparation, execution and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(xiv) to send notices (other than notices of default)
and other information regarding the Trust Securities and the
Junior Subordinated Debt Securities to the Securityholders in
accordance with this Trust Agreement;
(xv) to appoint a Paying Agent (subject to Section 5.09)
and Securities Registrar (subject to Section 5.04) in accordance
with this Trust Agreement;
(xvi) to assist in, to the extent provided in this Trust
Agreement, the winding up of the affairs of and termination of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware; and
(xvii) to take any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is
necessary, appropriate, convenient or advisable to protect and
conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
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B. As among the Trustees, the Property Trustee shall have the
exclusive power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(i) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of
the Trust Securities to the extent the Junior Subordinated Debt
Securities are redeemed or mature;
(ii) upon notice of distribution issued by the
Administrative Trustees in accordance with the terms of this
Trust Agreement, engage in such ministerial activities as shall
be necessary or appropriate to effect promptly the distribution
pursuant to terms of this Trust Agreement of Junior Subordinated
Debt Securities to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the
rights, powers and privileges of a holder of the Junior
Subordinated Debt Securities under the Subordinated Indenture
and, if an Event of Default occurs and is continuing, enforce
for the benefit of, and subject to the rights of, the Holders of
the Trust Securities, its rights as holder of the Junior
Subordinated Debt Securities under the Subordinated Indenture;
(iv) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the
terms of this Trust Agreement;
(v) take any Legal Action specifically required of the
Property Trustee pursuant to the terms of this Trust Agreement
which arises out of or in connection with an Event of Default or
the Property Trustee's duties and obligations under this Trust
Agreement, the Delaware Statutory Trust Act or the Trust
Indenture Act;
(vi) the establishment and maintenance of the Payment
Account;
(vii) the receipt of and holding of legal title to the
Junior Subordinated Debt Securities as described herein;
(viii) the collection of interest, principal and any
other payments made in respect of the Junior Subordinated Debt
Securities to the Payment Account;
(ix) the distribution from the Payment Account of
amounts owed to the Securityholders in respect of the Trust
Securities;
(x) the sending of notices of default and other
information to the Securityholders regarding the Trust
Securities and the Junior Subordinated Debt Securities required
to be sent by the Property Trustee pursuant to this Trust
Agreement;
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(xi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the winding
up of the affairs of and termination of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary, appropriate, convenient or advisable to
protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
C. So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trust shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a grantor trust for United States Federal
income tax purposes, (iv) incur any indebtedness for borrowed money, (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property, (vi) issue any securities other than the Trust Securities, or
(vii) have any power to, or agree to any action by the Depositor that would,
vary the investment (within the meaning of Treasury Regulation Section
301.7701-4(c)) of the Trust or of the Securityholders. The Trustees, at the
expense of the Trust, shall defend against all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
D. In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility and is hereby
authorized to assist the Trust with respect to, or effect on behalf of the
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) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 under the
Securities Act of 1933, as amended, in relation to the Preferred
Securities, including any amendments thereto;
(ii) to determine the states in which to take
appropriate action to qualify or register for sale all or part
of the Preferred Securities and to do any and all such acts,
other than actions which must be taken by or on behalf of the
Trust, and advise the Trustees of actions, if any, they must
take on behalf of the Trust, and prepare for execution and
filing any
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documents to be executed and filed by the Trust or on behalf of
the Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States;
(iii) to prepare for filing by the Trust, and to execute
on behalf of the Trust, an application to the New York Stock
Exchange or any other national stock exchange or the NASDAQ
National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) to prepare for filing by the Trust, and to execute
on behalf of the Trust, with the Commission a registration
statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act,
including any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities and to
execute, deliver and perform the Underwriting Agreement on
behalf of the Trust; and
(vi) any other actions determined by the Depositor to be
necessary, incidental, appropriate or convenient to carry out
any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
or taxed as other than a grantor trust for United States Federal income tax
purposes and so that the Junior Subordinated Debt Securities will be treated as
indebtedness of the Depositor for United States Federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Securityholders and the Trust in accordance with this Trust
Agreement. The right, title and interest of the Property Trustee to the Junior
Subordinated Debt Securities shall vest automatically in each Person who may
thereafter be appointed as Property Trustee in accordance with the terms hereof.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
17
Section 2.10 Mergers and Consolidations of the Trust. The Trust
may not 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 corporation or other Person, except as described below or otherwise
provided in this Trust Agreement, including, without limitation, as set forth in
Articles IV and IX. The Trust may at the request of the Company, with the
consent of the Administrative Trustees and without the consent of the Holders of
the Trust Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to a trust organized as
such under the laws of any state; provided, that (i) such successor entity
either (A) expressly assumes all of the obligations of the Trust with respect to
the Trust Securities or (B) substitutes for the Preferred Securities other
securities having substantially the same terms as the Trust Securities (herein
referred to as the "Successor Securities") so long as the Successor Securities
rank the same as the Trust Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Company expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of legal title to
the Junior Subordinated Debt Securities, (iii) the Preferred Securities or any
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, (iv) such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
does not cause the Preferred Securities (including any Successor Securities) to
be downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Trust Securities (including any Successor Securities) in any
material respect, other than with respect to any dilution of the holders'
interest in the new entity, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer for or lease, the
Company has received an Opinion of Counsel to the effect that (A) such merger,
consolidation, amalgamation, replacement, conveyance, transfer for or lease does
not adversely affect the rights, preferences and privileges of the Holders of
the Trust Securities (including any Successor Securities) in any material
respect, other than with respect to any dilution of the holders' interest in the
new entity, and (B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act, and (viii) the Company guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the Trust
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, in the opinion of tax counsel, such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for Federal income tax purposes.
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ARTICLE III
PAYMENT ACCOUNT
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and an agent of the Property
Trustee shall have exclusive control and sole right of withdrawal with respect
to the Payment Account for the purpose of making deposits in and withdrawals
from the Payment Account in accordance with this Trust Agreement. All monies and
other property deposited or held from time to time in the Payment Account shall
be held by the Property Trustee in the Payment Account for the exclusive benefit
of the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Debt Securities.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; EXCHANGE
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative
and accrue from the Issue Date and, except in the event that the Depositor
exercises its right to an Extension Period, shall be payable [quarterly]
[semi-annually] in arrears on __________, __________, __________ and __________
of each year, commencing on ______ __, 200_. If any date on which Distributions
are 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 which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed
at a rate of _____% per annum of the Liquidation Amount of the Trust Securities.
The amount of Distributions payable for any full [quarterly] [semi-annually]
period shall be computed on the basis of twelve 30-day months and a 360-day
year. If the Company exercises its rights to an Extension Period, then the rate
per annum at which Distributions on the Trust Securities accumulate shall be
increased by an amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such Extension Period is equal to
the aggregate amount of interest (including interest payable on unpaid interest
at
19
the percentage rate per annum set forth above, compounded [quarterly]
[semi-annually], to the extent permitted by applicable law) that accrues during
any such Extension Period on the Junior Subordinated Debt Securities. The
payment of such deferred interest, together with interest thereon, will be
distributed to the Holders of the Trust Securities as received at the end of any
Extension Period.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent that the
Trust has legally and immediately available funds in the Payment Account for the
payment of such Distributions.
(d) Distributions on the Trust Securities on each Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the close of business on (i) the Business Day prior to the relevant Distribution
Date if the Preferred Securities are represented by Book-Entry Preferred
Securities Certificates or (ii) the fifteenth calendar day prior to the relevant
Distribution Date if the Preferred Securities are represented by Definitive
Preferred Securities Certificates.
Each Trust Security upon registration of transfer of or in
exchange for or in lieu of any other Trust Security shall carry the rights of
Distributions accrued and unpaid, and to accrue, which were carried by such
other Trust Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Junior
Subordinated Debt Securities, whether at the stated maturity of the Junior
Subordinated Debt Securities or upon earlier redemption as provided in the
Junior Subordinated Debt Securities and the Subordinated Indenture, including
pursuant to a Special Event, the Trust will be required to redeem a Like Amount
of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 days 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 Securities Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the outstanding Trust Securities
are to be redeemed, the total Liquidation Amount of the Trust
Securities to be redeemed;
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(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 accrue on
and after such date; and
(vi) the place where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Junior Subordinated Debt Securities. Redemptions of the Trust
Securities shall be made, and the Redemption Price shall be deemed payable, on
each Redemption Date only to the extent that the Trust has funds legally and
immediately 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 Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.02(c), the Property Trustee will, so
long as the Preferred Securities are in book-entry only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds sufficient
to pay the applicable Redemption Price. If the Preferred Securities are no
longer in book-entry only form, the Property Trustee, subject to Section
4.02(c), shall irrevocably deposit with the Paying Agent funds sufficient to pay
the applicable Redemption Price and will give the Paying Agent irrevocable
instructions to pay the Redemption Price to the Holders thereof upon surrender
of their Preferred 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 for the Trust Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Securityholders holding Trust Securities so
called for redemption will cease, except the right of such Securityholders to
receive the Redemption Price, but without interest, and such Trust Securities
will cease to be outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Redemption Price shall 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
Trust Securities is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue at the then applicable rate, from such
Redemption Date originally established by the Trust for such Trust Securities to
the date such Redemption Price is actually paid.
(e) Subject to Section 4.03(a), if less than all the outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based
21
on Liquidation Amounts) among the Common Securities and the Preferred
Securities. The particular Preferred Securities to be redeemed shall be selected
on a pro rata basis (based on Liquidation Amounts) not more than 60 days prior
to the Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a redemption of portions
(equal to the Liquidation Amount or integral multiple thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than such
Liquidation Amount; provided, however, that before undertaking redemption of the
Preferred Securities on other than a pro rata basis, the Property Trustee shall
have received an Opinion of Counsel that the status of the Trust as a grantor
trust for Federal income tax purposes would not be adversely affected. The
Property Trustee shall promptly notify the Securities Registrar (if other than
the Property Trustee) in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred 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 Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
(f) If, at any time, a Special Event shall occur and be
continuing, the Depositor shall have the right, upon not less than 30 days nor
more than 60 days' notice, to redeem the Junior Subordinated Debt Securities, in
whole but not in part, for cash within 90 days following the occurrence of such
Special Event, and, following such redemption, a Like Amount of Preferred
Securities shall be redeemed by the Trust at the Redemption Price.
(g) Subject to the foregoing provisions of this Section 4.02 and
to applicable law (including, without limitation, United States Federal
securities laws), the Company or its Affiliates may, at any time and from time
to time, purchase outstanding Preferred Securities by tender, in the open market
or by private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions on, and the Redemption Price of,
the Trust Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date an Indenture Event of Default shall have
occurred and be continuing, no payment of any Distribution on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accrued and unpaid Distributions on all
Outstanding Preferred Securities for all distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee
22
shall first be applied to the payment in full in cash of all Distributions on,
or Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have waived any such
Indenture Event of Default under this Trust Agreement until the effect of all
such Indenture Events of Default with respect to the Preferred Securities have
been cured, waived or otherwise eliminated. Until any such Indenture Events of
Default under this Trust Agreement with respect to the Preferred Securities have
been so cured, waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the Holders of the Preferred Securities and not the Holder
of the Common Securities, and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Clearing Agency, such Distributions shall
be made to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable Distribution Dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed upon between the Property Trustee and the Holder of the Common
Securities.
Section 4.05 Tax Returns and Reports. The Administrative
Trustee(s) shall prepare (or cause to be prepared), at the Depositor's expense,
and file all United States Federal, state and local tax and information returns
and reports required to be filed by or in respect of the Trust. The
Administrative Trustee(s) shall (a) prepare and file (or cause to be prepared
and filed) the appropriate Internal Revenue Service form required to be filed in
respect of the Trust in each taxable year of the Trust; and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be furnished to such
Securityholder or the information required to be provided on such form. The
Administrative Trustees shall provide the Depositor with a copy of all such
returns and reports promptly after such filing or furnishing.
Section 4.06 Payments under the Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced by the amount
of any corresponding payment such Holder has directly received under the
Subordinated Indenture pursuant to Section _____ thereof.
Section 4.07 Exchange of Preferred Securities.
(a) If at any time the Company or any of its Affiliates is the
Holder of any Preferred Securities, the Company and such Affiliate(s) shall have
the right to deliver to the Property Trustee all or such portion of their
Preferred Securities as they elect and receive, in exchange therefor, Junior
Subordinated Debt Securities in an aggregate principal amount equal to the
aggregate stated Liquidation Amount of, and accrued and unpaid interest equal to
accumulated and unpaid Distributions on, such Preferred
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Securities. Such election (i) shall be exercisable effective on any Distribution
Date by the Company or its Affiliate(s) delivering to the Property Trustee a
written notice of such election specifying the aggregate Liquidation Amount of
the Preferred Securities with respect to which such election is being made and
the Distribution Date on which such exchange shall occur, which Distribution
Date shall be not less than ten Business Days after the date of receipt by the
Property Trustee of such election notice and (ii) shall be conditioned upon the
Company or its Affiliate(s) having delivered or caused to be delivered to the
Property Trustee or its designee the Preferred Securities which are the subject
of such election by 10:00 a.m., New York City time, on the Distribution Date on
which such exchange is to occur. After the exchange, such Preferred Securities
will be canceled and will no longer be deemed to be Outstanding and all rights
of the Company or its Affiliate(s) with respect to such Preferred Securities
will cease.
(b) In the case of an exchange described in clause (a) above,
the Trust will, on the date of such exchange, exchange Junior Subordinated Debt
Securities having a principal amount equal to a proportional amount of the
aggregate Liquidation Amount of the Outstanding Common Securities based on the
ratio of the aggregate Liquidation Amount of the Preferred Securities exchanged
pursuant to clause (a) above divided by the aggregate Liquidation Amount of the
Preferred Securities Outstanding immediately prior to such exchange, for such
proportional amount of Common Securities held by the Company (which
contemporaneously shall be canceled and no longer be deemed to be Outstanding);
provided, that the Company delivers or causes to be delivered to the Property
Trustee or its designee the required amount of Common Securities to be exchanged
by 10:00 a.m., New York City time on the Distribution Date on which such
exchange is to occur.
Section 4.08 Withholding. The Property Trustee or any Paying
Agent and the Administrative Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Property
Trustee or any Paying Agent shall request, and each Holder shall provide to the
Property Trustee or any Paying Agent, such forms or certificates as are
necessary to establish an exemption from withholding with respect to the Holder,
and any representations and forms as shall reasonably be requested by the
Property Trustee or any Paying Agent to assist it in determining the extent of,
and in fulfilling, its withholding obligations. The Administrative Trustee shall
file required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Property Trustee or any Paying Agent is required to withhold and pay over any
amounts to any authority with respect to distributions or allocations to any
Holder, the amount withheld shall be deemed to be a Distribution to the Holder
in the amount of the withholding. In the event of any claimed overwithholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Property Trustee or any Paying Agent may reduce subsequent
Distributions by the amount of such withholding.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01 Initial Ownership. Upon the creation of the Trust
by the contribution by the Depositor pursuant to Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
Section 5.02 The Trust Securities Certificates. Each of the
Preferred and Common Securities Certificates shall be issued in minimum
denominations of the Liquidation Amount and integral multiples of such
Liquidation Amount in excess thereof. The Trust Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee. Trust Securities Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03 Execution and Delivery of Trust Securities
Certificates. On the Issue Date and the Underwriters' Overallotment Option
Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust and delivered to or upon the
written order of the Depositor signed by its Chairman of the Board, its
President or any Vice President, without further corporate action by the
Depositor, in authorized denominations. Upon such execution and delivery, the
Trust Securities Certificates and the Trust Securities evidenced thereby shall
be validly issued and entitled to the benefits of this Trust Agreement.
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a Securities
Register in which, subject to such reasonable regulations as it may prescribe,
the Securities Registrar shall provide for the registration of Preferred
Securities Certificates and the Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees shall execute and deliver in the name of the
designated transferee
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or transferees one or more new Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of execution
by such Administrative Trustee or Trustees. The Securities Registrar shall not
be required to register the transfer of any Preferred Securities that have been
called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations and a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Securities Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer
or exchange of Preferred Securities Certificates, but the Securities Registrar
or the Administrative Trustees may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer or exchange of Preferred Securities Certificates.
Section 5.05 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 protected
purchaser, the Administrative Trustees or any one of them on behalf of the Trust
shall execute and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section 5.05,
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 5.05 shall constitute conclusive evidence of an
ownership interest in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees or the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
Distributions (subject to Section
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4.01(d)) and for all other purposes whatsoever, and neither the Trustees nor the
Securities Registrar shall be bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to be furnished
(unless the Property Trustee is acting as Securities Registrar with respect to
the Trust Securities) to (i) the Property Trustee semi-annually, not later than
__________ and __________ in each year, and (ii) the Property Trustee within 15
days after receipt by any Administrative Trustee of a request therefor from the
Property Trustee in writing, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Securityholders as of a
date not more than 15 days prior to the time such list is furnished. If three or
more Securityholders or one or more Holders of Trust Securities Certificates
evidencing not less than 25% of the outstanding Liquidation Amount apply in
writing to the Administrative Trustees, and such application states that the
applicants desire to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities
Certificates and such application is accompanied by a copy of the communication
that such applicants propose to transmit, then the Administrative Trustees
shall, within five Business Days after the receipt of such application, afford
such applicants access during normal business hours to the current list of
Securityholders. Each Holder, by receiving and holding a Trust Securities
Certificate, shall be deemed to have agreed not to hold the Depositor, the
Administrative Trustees or the Property Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.08 Maintenance of Office or Agency. The Administrative
Trustees shall maintain in the Borough of Manhattan, New York, or in the City of
Wilmington, Delaware, an office or offices or agency or agencies where Preferred
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in respect of the
Trust Securities Certificates may be served. The Administrative Trustees
designate the Corporate Trust Office as the initial office for such purposes.
The Administrative Trustees shall give prompt written notice to the Depositor,
the Property Trustee and the Securityholders of any change in the location of
the Securities Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall
make Distributions and other payments provided hereby to Securityholders from
the Payment Account and shall report the amounts of such Distributions and
payments to the Property Trustee and the Administrative Trustees. Any Paying
Agent shall have the revocable power to withdraw funds from the Payment Account
for the purpose of making the Distributions and payments provided hereby. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Property Trustee, and it may
choose any co-paying agent that is 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
Depositor. In the event that a Paying Agent shall resign or be removed, the
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Administrative Trustees shall appoint a successor that is acceptable to the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.01, 8.03 and 8.06 shall apply to the Property Trustee also in its
role as Paying Agent, for so long as the Property Trustee shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor. On the
Issue Date and the Underwriters' Overallotment Option Closing Date, the
Depositor shall acquire, and thereafter retain, beneficial and record ownership
of the Common Securities. Any attempted transfer of the Common Securities,
except for transfers by operation of law or to an Affiliate of the Depositor or
a permitted successor pursuant to Section 8.01 of the Subordinated Indenture,
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT
REFERRED TO HEREIN."
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred Securities
Certificate or Certificates constituting Book-Entry Preferred Securities
Certificates, and will be delivered to the initial Clearing Agency, by, or on
behalf of, the Trust if so requested by the Clearing Agency or, if not so
requested by the Clearing Agency, will be deposited with and held by the
Property Trustee as custodian for the Clearing Agency. Such Preferred Securities
Certificate or Certificates shall initially be registered on the Securities
Register in the name of the nominee of the initial Clearing Agency, and no Owner
will receive a definitive Preferred Securities Certificate representing such
beneficial owner's interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities Certificates have
been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in
full force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of
this Trust Agreement relating to the Book-Entry Preferred
Securities Certificates (including the
28
payment of Distributions on the Preferred Securities evidenced
thereby and the giving of instructions or directions to Owners
of such Preferred Securities) as the sole Holder of Preferred
Securities evidenced thereby and shall have no obligations to
the Owners thereof;
(iii) to the extent that the provisions of this Section
5.11 conflict with any other provisions of this Trust Agreement,
the provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Preferred
Securities evidenced by Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency
and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing
Agency Participants. Pursuant to the Certificate Depository
Agreement, unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.13, the Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice
or other communication to the Owners is required under this Trust Agreement,
unless and until Definitive Preferred Securities Certificates shall have been
issued to Owners pursuant to Section 5.13, the Trustees shall give all such
notices and communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates. If
(i) the Depositor advises the Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Preferred Securities Certificates, and the Depositor is unable to locate
a qualified successor, or (ii) the Depositor at its option advises the Trustees
in writing that it elects to terminate the book-entry system through the
Clearing Agency, then the Administrative Trustees shall notify the Clearing
Agency and Holders of the Preferred Securities. Upon surrender to the
Administrative Trustees of the typewritten Preferred Securities Certificate or
Certificates constituting the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees or any one of them shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of the
Clearing Agency. Neither the Securities Registrar nor the Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Preferred Securities Certificates, the Trustees shall recognize
the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred
29
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.
Section 5.14 Rights of Securityholders. The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The issuance of the Trust Securities is not subject to, and the
Holders and the Trust Securities shall have no, preemptive or other similar
rights to subscribe for any additional securities. When issued and delivered to
Securityholders against payment of the purchase price therefor, except as
otherwise provided in the last sentence of this Section 5.14, the Trust
Securities will be fully paid and nonassessable by the Trust. Pursuant to
Section 3803(a) of the Delaware Statutory Trust Act, the Holders of the Trust
Securities 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.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Trust Agreement, in the
Subordinated Indenture, and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Junior Subordinated Debt Securities are held
by the Property Trustee, the Property Trustee shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or executing any trust or power conferred on the Indenture
Trustee with respect to such Junior Subordinated Debt Securities, (ii) waive any
past default which is waivable under Article ____ of the Subordinated Indenture,
(iii) exercise the remedies available under the Subordinated Indenture as a
Holder of the Junior Subordinated Debt Securities or (iv) consent to any
amendment, modification or termination of the Subordinated Indenture or the
Junior Subordinated Debt Securities, where such consent shall be required, or to
any other action, as holder of the Junior Subordinated Debt Securities, under
the Subordinated Indenture, without, in each case, obtaining the prior approval
of the Holders of at least a majority in Liquidation Amount of the Preferred
Securities; provided, however, that
30
where a consent under the Subordinated Indenture would require the consent of
each holder of the Junior Subordinated Debt Securities affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent
of each Holder of Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except pursuant to a subsequent vote of the Holders of Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Indenture Trustee with
respect to the Junior Subordinated Debt Securities. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities, prior to taking
any of the foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel from independent, outside legal counsel
to the effect that the Trust will not be classified as other than a grantor
trust for United States Federal income tax purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to this Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of not less than a majority in
Liquidation Amount of the Outstanding Preferred Securities. In addition to
obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall, at the expense
of the Depositor, obtain an Opinion of Counsel from independent, outside legal
counsel to the effect that the Trust will not be classified as other than a
grantor trust for United States Federal income tax purposes on account of such
action.
Section 6.02 Notice of Meetings. Notice of all meetings of the
Holders of Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Administrative Trustees pursuant to Section 10.07
to each Holder of Preferred Securities, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
Section 6.03 Meetings of Holders of Preferred Securities.
(a) No annual meeting of Securityholders is required to be held.
The Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Holders of not less than 25%
of the Outstanding Preferred Securities (based upon their aggregate Liquidation
Amount), and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of Holders of Preferred Securities to
vote on any matters as to which such Holders are entitled to vote.
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(b) Holders of not less than 50% of the Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by
the Holders of Preferred Securities of record present, in person or by proxy,
holding not less than a majority of the Preferred Securities (based upon their
aggregate Liquidation Amount) held by the Holders of Preferred Securities
present, either in person or by proxy, at such meeting shall constitute the
action of the Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to
one vote for each $___ of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders,
any Securityholder entitled to vote there at may vote by proxy; provided, that
no proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Only Securityholders shall be entitled
to vote. When Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding not less than a majority of all outstanding
Trust Securities (based upon their aggregate Liquidation Amount) entitled to
vote in respect of such action (or such other proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing (based upon their aggregate Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
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Section 6.08 Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement to
be given, made or taken by Securityholders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Securityholders in person or by an agent appointed in writing, and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
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 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section 6.08.
(b) 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 his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deem sufficient.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
(f) If any dispute shall arise between the Securityholders of
Trust Securities and the Administrative Trustees or among such Securityholders
or Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
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Section 6.09 Inspection of Records. Upon reasonable notice to
the Trustees, the records of the Trust shall be open to inspection at the
principal place of business of the Trust (as indicated in Section 2.02) by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.01 Representations and Warranties of the Bank and the
Property Trustee. The Bank and the Property Trustee, each severally on behalf of
and as to itself only, as of the date hereof, and each successor Property
Trustee at the time of the successor Property Trustee's acceptance of its
appointment as Property Trustee hereunder (in the case of a successor Property
Trustee, the term "Bank" as used herein shall be deemed to refer to such
successor Property Trustee in its separate corporate capacity) hereby represents
and warrants (as applicable) for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a banking corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation;
(b) the Bank 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) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and does not
require any approval of stockholders of the Bank and such execution, delivery
and performance shall not (i) violate the Bank's charter or by-laws; (ii)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation of 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 Bank is a party or by which it is bound; or
(iii) violate any law, governmental rule or regulation of the United States or
its jurisdiction of incorporation, as the case may be, governing the banking or
trust powers of the Bank or the Property Trustee (as appropriate in context) or
any order, judgment or decree applicable to the Property Trustee or the Bank;
34
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing Federal law governing the banking or trust powers of the Bank or the
Property Trustee, as the case may be, under the laws of the United States or its
jurisdiction of incorporation; and
(f) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting the Bank or the
Property Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power and
authority of the Property Trustee to enter into or perform its obligations as
one of the Trustees under this Trust Agreement; and
(g) the Property Trustee is a Person eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus of at
least $50,000.000.
Section 7.02 Representations and Warranties of the Delaware Bank
and the Delaware Trustee. The Delaware Bank and the Delaware Trustee, each
severally on behalf of and as to itself, as of the date hereof, and each
successor Delaware Trustee at the time of the successor Delaware Trustee's
acceptance of appointment as Delaware Trustee hereunder (in the case of a
successor Delaware Trustee, the term "Delaware Bank" as used herein shall be
deemed to refer to such successor Delaware Trustee in its separate corporate
capacity), hereby represents and warrants (as applicable) for the benefit of the
Depositor and the Securityholders that:
(a) the Delaware Bank is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) the Delaware Bank 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) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally binding
agreement of the Delaware Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Delaware Trustee and does not
require any approval of stockholders of the Delaware Bank and such execution,
delivery and performance shall
35
not (i) violate the Delaware Bank's charter or by-laws; (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to which
the Delaware Bank 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 or trust powers
of the Delaware Bank or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Delaware Bank or the Delaware
Trustee;
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein or therein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing Federal law governing the banking or trust powers of the
Delaware Bank or the Delaware Trustee, as the case may be, under the laws of the
United States or the State of Delaware; and
(f) there are no proceedings pending or, to the best of the
Delaware Trustee's knowledge, threatened against or affecting the Delaware Bank
or the Delaware Trustee in any court or before any governmental authority,
agency or arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the right,
power and authority of the Delaware Trustee to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Section 7.03 Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date
or the Option Closing Date, as the case may be, on behalf of the Trust will have
been duly authorized, and will have been duly and validly executed, issued and
delivered by the Administrative Trustees, on behalf of the Trust, pursuant to
the terms and provisions of, and in accordance with the requirements of, this
Trust Agreement and the Securityholders thereof shall be, as of such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Bank, the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
Section 8.01 Certain Duties and Responsibilities.
36
(a) The rights, duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of the Property
Trustee, the Trust Indenture Act. The Delaware Trustee and the Administrative
Trustees shall have no liability under this Trust Agreement except for gross
negligence, bad faith or willful misconduct. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or risk
their own funds or otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of their rights or
powers. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section 8.01. To the extent that, at law or in equity, the Delaware Trustee or
an Administrative Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, the
Delaware Trustee or such Administrative Trustee shall not be liable to the Trust
or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the Delaware Trustee
or the Administrative Trustees otherwise existing at law or in equity, are
agreed by the Depositor and the Securityholders to replace such other duties and
liabilities of the Delaware Trustee or the Administrative Trustees, as the case
may be.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that there shall be
sufficient income or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the income and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the case of the
Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of
the Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the pertinent
facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not
less than a majority in Liquidation Amount of the Trust
Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Property
37
Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the
Junior Subordinated Debt Securities and the Payment Account
shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and
the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree in writing with the Depositor and money held by the
Property Trustee need not be segregated from other funds held by
it except in relation to the Payment Account maintained by the
Property Trustee pursuant to Section 3.01 and except to the
extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
negligence, default or misconduct of the Administrative Trustees
or the Depositor.
Section 8.02 Certain Notices.
(a) Within 90 days after the occurrence of any default actually
known to a Responsible Officer of the Property Trustee, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 10.07,
notice of any default known to the Property Trustee to the Securityholders, the
Administrative Trustees and the Depositor, unless such default shall have been
cured or waived. For the purpose of this Section 8.02, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default.
(b) 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 Junior Subordinated Debt Securities pursuant to the Subordinated
Indenture, the Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.7, notice of such exercise to the Holders and the
Administrators, unless such exercise shall have been revoked.
Section 8.03 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01:
(i) 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,
38
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;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action, or (B) in construing any of the
provisions in this Trust Agreement the Property Trustee finds
the same ambiguous or inconsistent with any other provisions
contained herein, or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, in
each case, except as to any matter as to which the Holders of
Preferred Securities are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a
notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property
Trustee is authorized to 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 as it shall deem advisable and in the best interests of
the Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
(iii) the Property Trustee may consult with counsel of
its selection (which may be counsel to the Depositor or any of
its Affiliates) and the advice of such counsel or any Opinion of
Counsel from 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;
(iv) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this
Trust Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(v) 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
39
paper or document, unless requested in writing to do so by one
or more Securityholders;
(vi) 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 and the
Property Trustee shall not be liable for the default or
misconduct of such agents or attorneys; provided, that the
Property Trustee shall be responsible for its own negligence or
recklessness with respect to selection of any agent or attorney
appointed by it hereunder;
(vii) any direction or act of the Depositor or the
Administrative Trustees with respect to the Property Trustee or
Delaware Trustee contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(viii) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a
matter be established before undertaking, suffering or omitting
any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence
of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall
be promptly delivered by the Depositor or the Administrative
Trustees;
(ix) 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 other
document under the Uniform Commercial Code of the State of
Delaware or any other jurisdiction, or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
(x) 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 of the Trust
Securities, which instructions may only be given by the Holders
of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee
under the terms of the Trust Securities in respect of such
remedy, right or action; (ii) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received; and (iii) shall be protected in
acting in accordance with such instructions; and
(xi) 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
40
impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it
shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right,
power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a
duty.
Section 8.04 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 Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Trust of the proceeds of the Trust
Securities in accordance with Section 2.05 or by the Depositor of the proceeds
of the Junior Subordinated Debt Securities.
The Property Trustee may conclusively assume that any funds held
by it hereunder are legally available unless a Responsible Officer of the
Property Trustee has received written notice from the Company, any Holder or any
other Trustee stating that such funds are not legally available.
Section 8.05 May Hold Securities. Any Trustee or any other agent
of the Trustees or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.08
and 8.13 and except as provided in the definition of the term "Outstanding" in
Article I, may otherwise deal with the Trust with the same rights it would have
if it were not a Trustee or such other agent.
Section 8.06 Compensation; Fees; Indemnity. The Depositor
agrees:
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), in the case of the Property
Trustee as set forth in a written agreement between the Depositor and the
Property Trustee;
(2) except as otherwise expressly provided herein, to reimburse
any Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent any such expense,
disbursement or advance is attributable to such Trustee's negligence, bad faith
or willful misconduct (or, in the case of the Administrative Trustees or the
Delaware Trustee, to the extent any such expense, disbursement or advance is
attributable to its, his or her gross negligence, bad faith or willful
misconduct);
(3) to the fullest extent permitted by law, to indemnify each of
the Trustees, any predecessor Trustee, the Bank and the Delaware Bank (each, a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless
41
against, any loss, damage, claims, liability, penalty or expense of any kind or
nature whatsoever, arising out of or in connection with the acceptance or
administration of this Trust Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder, except to the extent
such amount is attributable to such Fiduciary Indemnified Person's own ordinary
negligence (solely in the case of the Property Trustee), gross negligence, bad
faith or willful misconduct; and
(4) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Depositor of an
undertaking by or on behalf of such Fiduciary Indemnified Person to repay such
amount if it shall be determined by a final, nonappealable order of a court of
competent jurisdiction that such Fiduciary Indemnified Person is not entitled to
be indemnified as authorized in this subsection.
The provisions of this Section 8.06 shall survive the
termination of the Trust and this Trust Agreement and shall survive the
resignation or removal of any Trustee.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section 8.07, 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 8.07, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article VIII. The Property
Trustee and the Delaware Trustee may be the same person.
(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 such
entity.
(c) There shall at all times be a Delaware Trustee with respect
to the Trust Securities. The Delaware Trustee shall either be (i) a natural
person who is at least 21 years of age and a resident of the State of Delaware
or (ii) a legal entity with its principal place of business in the State of
Delaware and that otherwise meets the requirements of Delaware law, and that
shall act through one or more persons authorized to bind such entity.
42
Section 8.08 Conflicting Interests. If the Property Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement.
Section 8.09 Co-Trustees and Separate Trustee. At any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust Property may at the
time be located, the Holder of the Common Securities and the Property Trustee
shall have power to appoint, and upon the written request of the Property
Trustee, the Depositor shall for such purpose join with the Property Trustee 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 act as separate trustee of any such
Trust 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 8.09. If the Depositor does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or in case an Indenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section 8.09 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.
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:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustees specified hereunder, shall be exercised, solely by
such Trustees.
(ii) 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
43
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.
(iii) 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
8.09, and, in case an Indenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon
the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or
proper to effectuate such resignation or removal. A successor to
any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section 8.09.
(iv) 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 such trustee hereunder.
(v) The Trustees shall not be liable by reason of any
act of a co-trustee or separate trustee.
(vi) 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.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor to such Relevant Trustee pursuant to
this Article VIII shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of Section
8.11.
(b) Subject to clause (a) of this Section 8.10, the Relevant
Trustee may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by a successor to such Relevant
Trustee required by Section 8.11 shall not have been delivered to the Relevant
Trustee within 30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition, at the expense of the Depositor, any
court of competent jurisdiction for the appointment of a successor to such
Relevant Trustee.
(c) Unless an Indenture Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by Act of the Holder of
the
44
Common Securities. If an Indenture 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 Securityholders of not less than a
majority in Liquidation Amount of the Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holder of the Common Securities at
any time.
(d) If any Trustee shall resign, be removed or become incapable
of continuing to act as Trustee, or if any vacancy shall occur in the office of
any Trustee, at a time when no Indenture Event of Default shall have occurred
and be continuing, the Holder of the Common Securities, by Act of such Holder
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
to such Relevant Trustee or Trustees, and such successor 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 an Indenture Event of Default shall have occurred and be continuing,
the Holders of Preferred Securities, by Act of the Securityholders of not less
than a majority in Liquidation Amount of the Preferred Securities then
Outstanding delivered to the retiring Relevant Trustee, shall promptly appoint a
successor to such Relevant Trustee or Trustees, and such successor 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 an Indenture Event of Default shall have occurred and be
continuing, the Holder of the Common Securities, by Act of such Securityholders
delivered to an Administrative Trustee or the Trust, shall promptly appoint a
successor Administrative Trustee or Administrative Trustees with respect to the
Trust Securities and the Trust, and such successor Administrative Trustee or
Administrative Trustees shall comply with the applicable requirements of Section
8.11. If no successor to such Relevant Trustee shall have been so appointed in
accordance with this Section 8.10 and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a Securityholder of
Trust Securities for at least six consecutive months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor to such Relevant Trustee.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Trustee, and each appointment of a successor Trustee to
all Securityholders in the manner provided in Section 10.07 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.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (i) the act of a remaining Administrative Trustee or
(ii) otherwise by the Depositor (with the successor in each case being an
individual who satisfies the eligibility requirement for Administrative Trustees
set forth in Section 8.07). Additionally,
45
notwithstanding the foregoing or any other provision of this Trust Agreement, in
the event the Depositor believes that any Administrative Trustee has become
incompetent or incapacitated, the Depositor, by notice to the remaining
Trustees, may terminate the status of such Person as an Administrative Trustee
(in which case the vacancy so created will be filled in accordance with the
preceding sentence).
Section 8.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor to a
Relevant Trustee, each such successor Trustee so appointed shall execute,
acknowledge and deliver to the Trust and to the retiring Relevant Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor 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 the request of the Depositor or such
successor Trustee, such retiring Relevant Trustee shall, upon payment of amounts
then due to it under this Trust Agreement, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Relevant Trustee and shall duly assign, transfer and deliver to such
successor Trustee all Trust Property and money held by such retiring Relevant
Trustee hereunder.
(b) Upon request of any such successor Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the preceding paragraph.
(c) No successor to a Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article VIII.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person 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 Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article VIII,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor
or Trust(a). If and when the Property Trustee shall be or become a creditor of
the Depositor or the Trust (or any other obligor upon the Junior Subordinated
Debt Securities or the Trust Securities), the Property Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Depositor or Trust (or any such other obligor).
46
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after ________ of each year commencing with
________, ____, if required by Section 313(a) of the Trust Indenture Act, the
Property Trustee shall transmit a brief report dated as of such ________ with
respect to any of the events specified in such Section 313(a) that may have
occurred since the later of the date of this Trust Agreement or the preceding
________.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the times
specified therein.
(c) Reports pursuant to this Section 8.14 shall be transmitted
in the manner and to the Persons required by Sections 313(c) and (d) of the
Trust Indenture Act.
Section 8.15 Reports to the Property Trustee. The Depositor and
the Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act in the form and in the manner and
at the times required by Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given pursuant to Section 314(c)(1) of
the Trust Indenture Act shall be given in the format of an Officer's
Certificate.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be five; provided,
that the Depositor by written instrument may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers, authority and
authorization granted to the Administrative Trustees and shall discharge the
duties imposed upon the Administrative Trustees by this Trust Agreement.
47
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07A, 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 the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement.
Section 8.19 Voting. Except as otherwise provided in this Trust
Agreement, the consent or approval of the Administrative Trustees shall require
consent or approval by not less than a majority of the Administrative Trustees,
unless there are only two, in which case both must consent.
Section 8.20 Enforcement of Rights of Property Trustee by
Securityholders. If an Event of Default occurs and is continuing, then the
Holders of Preferred Securities will rely on the enforcement by the Property
Trustee as the holder of the Junior Subordinated Debt Securities of its rights
against the Company. In addition, the Holders of not less than a majority in
aggregate Liquidation Amount of the Preferred Securities will have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under this Trust Agreement, including
the right to direct the Property Trustee to exercise the remedies available to
it as a holder of the Junior Subordinated Debt Securities; provided, that such
direction shall not be in conflict with any rule of law or with this Trust
Agreement, and could not involve the Property Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate. If the Property
Trustee fails to enforce its rights under the Junior Subordinated Debt
Securities, a Holder of Preferred Securities may, to the fullest extent
permitted by applicable law, institute a legal proceeding against the Company to
enforce its rights under this Trust Agreement without first instituting any
legal proceeding against the Property Trustee or any other Person, including the
Trust; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatsoever by virtue of, or by availing of,
any provision of this Trust Agreement to affect, disturb or prejudice the rights
of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Trust Agreement, except in the manner herein provided and for the equal and
ratable benefit of all such Holders. Notwithstanding the foregoing, a Holder of
Preferred Securities may institute a legal proceeding directly against the
Company, without first instituting a legal proceeding against or requesting or
directing that action be taken by the Property Trustee or any other Person, for
enforcement of payment to such Holder of principal of or interest on the Junior
Subordinated Debt
48
Securities having a principal amount equal to the aggregate Liquidation Amount
of the Preferred Securities of such Holder on or after the due dates therefor
specified or provided for in the Junior Subordinated Debt Securities. The
Company shall be subrogated to all rights of the Holders of Preferred Securities
in respect of any amounts paid to such Holders by the Company pursuant to this
Section 8.20.
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01 Dissolution. Upon the first to occur of any of the
following events (such first occurrence, an "Termination Event"), the Trust
shall be dissolved in accordance with the terms hereof:
(a) the automatic dissolution on _____, _____ (the "Expiration
Date");
(b) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(c) the delivery to the Property Trustee by the Depositor at any
time (which direction is optional and wholly within the discretion of the
Depositor) of the Depositor's written election to dissolve the Trust and
direction to the Property Trustee to distribute the Junior Subordinated Debt
Securities to Securityholders as provided in Section 9.04;
(d) the payment at maturity or redemption of all of the Junior
Subordinated Debt Securities, and the consequent payment of the Preferred
Securities;
(e) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction; and
(f) if prior to the issuance of the Trust Securities, when the
Depositor and the Administrative Trustees have elected in writing to dissolve
the Trust.
Section 9.02 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the last to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of any expenses owed
by the Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.03 Certificate of Cancellation. Following the
dissolution of the Trust pursuant to Section 9.01, and upon completion of
winding up of the Trust and its termination in accordance with Section 9.02 and
the Delaware Statutory Trust
49
Act, an Administrative Trustee shall prepare, execute and file a Certificate of
Cancellation for the Trust that complies with the Delaware Statutory Trust Act.
Section 9.04 Liquidation.
(a) If any Termination Event specified in clauses (a), (b), (c),
and (e) of Section 9.01 occurs, the Trust shall be liquidated and the Property
Trustee shall distribute the Junior Subordinated Debt Securities to the
Securityholders as provided in this Section 9.04.
(b) In connection with a distribution of the Junior Subordinated
Debt Securities, each Holder of Trust Securities shall be entitled to receive,
after the satisfaction of liabilities to creditors of the Trust in accordance
with the Delaware Statutory Trust Act (as certified in a certificate of the
Administrative Trustees), a Like Amount of Junior Subordinated Debt Securities.
Notice of liquidation shall be given by the Property Trustee by first-class
mail, postage prepaid, mailed not later than 30 days nor more than 60 days prior
to the Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be outstanding and
any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Junior Subordinated
Debt Securities; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Junior Subordinated Debt Securities as the
Administrative Trustees or the Property Trustee shall deem
appropriate.
(c) In order to effect the liquidation of the Trust and
distribution of the Junior Subordinated Debt Securities to Securityholders, the
Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem appropriate to effect
the distribution of Junior Subordinated Debt Securities in exchange for the
outstanding Trust Securities Certificates.
(d) Except where Section 9.01(d) or 9.04(f) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
outstanding, (ii) certificates representing a Like Amount of Junior Subordinated
Debt Securities will be issued to Holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Junior Subordinated Debt
Securities, accruing interest at the rate provided for in the Junior
Subordinated Debt Securities from the last Distribution Date on which a
50
Distribution was made on such Trust 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 Junior Subordinated Debt Securities) and (iv) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Junior Subordinated Debt Securities upon surrender of
Trust Securities Certificates.
(e) The Depositor will use its reasonable efforts to have the
Junior Subordinated Debt Securities that are distributed in exchange for the
Preferred Securities to be listed on such securities exchange as the Preferred
Securities are then listed. The Depositor may elect to have the Junior
Subordinated Debt Securities issued in book-entry form to the Clearing Agency or
its nominee.
(f) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Junior
Subordinated Debt Securities in the manner provided herein is determined by the
Administrative Trustees not to be practical, in which event the Holders will be
entitled to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then, subject
to the next succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holder of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that, if
an Indenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Limitation of Rights of Securityholders. The death
or incapacity of any Person having an interest, beneficial or otherwise, in a
Trust Security shall not operate to terminate this Trust Agreement, nor entitle
the legal representatives or heirs of such Person or any Securityholder for such
Person, to claim an accounting, take any action or bring any proceeding in and
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 10.02 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) to
cure any
51
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to add to the covenants, restrictions or
obligations of the Depositor, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will not be classified as
other than a grantor trust for United States Federal income tax purposes at any
time that any Trust Securities are outstanding, or to ensure that the Trust will
not be required to register as an investment company under the Investment
Company Act, or to conform to any change in the Investment Company Act or the
Trust Indenture Act or the rules and regulations under either law; provided,
however, that, except in the case of clause (i), such action shall not adversely
affect in any material respect the interests of any Securityholder, and any such
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 6.01(c) or Section 10.02(c)
hereof, any provision in this Trust Agreement may be amended by the Trustees and
the Depositor with (i) the consent of Trust Securityholders representing not
less than a majority (based upon Liquidation Amounts) of the Trust Securities
then outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not affect the Trust's status as
a grantor trust for United States Federal income tax purposes or the Trust's
exemption from status of an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date, (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.03 or 6.06 hereof),
this paragraph (c) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, the Trustees shall not enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act, or cease to be classified as a grantor trust for United States Federal
income tax purposes.
(e) Without the consent of the Depositor, this Trust Agreement
may not be amended in a manner which imposes any additional obligation on the
Depositor. In executing any amendment permitted by this Trust Agreement, the
Trustees shall be entitled to receive, Opinion of Counsel and an Officer's
Certificate stating that such amendment is authorized and permitted by, or has
been effected in compliance with, this
52
Trust Agreement. Any Trustee may, but shall not be obligated to, enter into any
such amendment which affects such Trustee's own rights, duties, immunities or
liabilities under this Trust Agreement or otherwise, and no such amendment shall
be binding on such Trustee without its prior written consent thereto.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
Section 10.03 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 10.04 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE (WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 10.05 Successors. This Trust Agreement shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the Trust
or the Trustees, including any successor by operation of law.
Section 10.06 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.07 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address appear on the
Securities Register and (ii) in the case of the Common Securityholder or the
Depositor, to Nextel Communications, Inc., 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxx 00000, Attention: Corporate Secretary, Facsimile No. __________. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon the Trust or the Trustees shall be given in writing addressed (until
another address is published by the Trust) as follows: (i) with respect to the
Property Trustee and the Delaware Trustee, to __________, Attention: Corporate
Trust Administration - Nextel Capital Trust [I/II/III]; and (ii) with respect to
the Administrative Trustees, to them at the address
53
above for notices to the Depositor, marked Attention: Administrative Trustees of
Nextel Capital Trust [I/II/III] c/o Corporate Secretary. Such notice, demand or
other communication to or upon the Trust or the Trustees shall be deemed to have
been sufficiently given or made only upon actual receipt of the writing by the
applicable Trustee.
Section 10.08 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trustee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, such Trust Indenture Act provision shall apply to this Trust Agreement
only as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
Section 10.09 Acceptance of Terms of Trust Agreement, Guarantees
and Subordinated Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
Section 10.10 Execution of Counterparts. This Trust Agreement
may contain more than one counterpart of the signature page and this Trust
Agreement may be executed by the affixing of the signature of each of the
parties to one or more of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
54
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Trust Agreement as of the date first above written.
NEXTEL COMMUNICATIONS, INC.,
as Depositor
By:
----------------------------------
Name:
Title:
------------------------,
as Property Trustee
By:
----------------------------------
Name:
Title:
------------------------,
as Delaware Trustee
By:
----------------------------------
Name:
Title:
----------------------------------
------------------------,
as Administrative Trustee
----------------------------------
------------------------,
as Administrative Trustee
----------------------------------
------------------------,
as Administrative Trustee
55
EXHIBIT A
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE
TRUST AGREEMENT REFERRED TO HEREIN
Certificate Number Number of Common Securities
C-1 _______
Certificate Evidencing Common Securities
of
NEXTEL CAPITAL TRUST [I/II/III]
Common Securities
(Liquidation Amount $___ per Common Security)
Nextel Capital Trust [I/II/III], a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Nextel
Communications, Inc. (the "Holder") is the registered owner of ______________
(______) common securities of the Trust constituting undivided beneficial
interests in the assets of the Trust and designated the Common Securities
(Liquidation Amount $___ per Common Security) (the "Trust Common Securities").
In accordance with Section 5.10 of the Trust Agreement (as defined below) the
Common Securities are not transferable, except by operation of law or as
permitted by the Trust Agreement referred to herein, and any attempted transfer
hereof shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of ________, 200_, as
the same may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
A-1
IN WITNESS WHEREOF, the Administrative Trustee of the Trust has
executed this certificate this ____ day of _______, 20__.
NEXTEL CAPITAL TRUST [I/II/III]
By:
------------------------------
------------------------,
as Administrative Trustee
A-2
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement")
is made as of ________, 200_, between Nextel Communications, Inc., a Delaware
corporation (the "Company"), and Nextel Capital Trust [I/II/III], a Delaware
statutory trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to, and receive Junior Subordinated Debt Securities from,
the Company and to issue and sell Nextel Capital Trust [I/II/III] ____% Trust
Preferred Securities (the "Preferred Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of ________, 200_, as the same may be
amended from time to time (the "Trust Agreement"); and
WHEREAS, the Company is the issuer of the Junior Subordinated
Debt Securities.
NOW, THEREFORE, in consideration of the purchase by each holder
of the Preferred Securities, which purchase the Company hereby agrees shall
benefit the Company and which purchase the Company acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Company and the
Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities. This Agreement is intended to
be for the benefit of, and to be enforceable by, all such Beneficiaries, whether
or not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Company and __________, as
guarantee trustee, or under this Agreement for any reason
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whatsoever. Except as set forth in this Section 1.02, this Agreement is
continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives notice
of acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for
the benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, the Company with respect to the happening of any
of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against the Company and the Company waives any right or
remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against the Company.
Section 1.06. Subrogation. The Company shall be subrogated to
all rights (if any) of the Trust in respect of any amounts paid to the
Beneficiaries by the Company under this Agreement; provided, however, that the
Company shall not (except to the extent required by mandatory provisions of law)
be entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Agreement, if, at the time of any such payment,
any amounts are due and unpaid under this Agreement.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the Beneficiaries.
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Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex):
Nextel Capital Trust [I/II/III]
c/o [Guarantee Trustee]
____________
____________
Facsimile No.: __________
Attention: Corporate Trust Administration
Nextel Communications, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile No.: __________
Attention: __________
Section 2.04. Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Section 2.05. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF).
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THIS AGREEMENT is executed as of the date first above written.
NEXTEL COMMUNICATIONS, INC.
By:
-------------------------------
Name:
Title:
NEXTEL CAPITAL TRUST [I/II/III]
By:
-------------------------------
, as
----------------------------
Administrative Trustee
B-4
Exhibit C
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Nextel Capital Trust [I/II/III] or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment 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 any person is wrongful inasmuch
as the registered owner thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred
Securities
___________________
P-__ CUSIP NO.
Certificate Evidencing Preferred Securities
of
Nextel Capital Trust [I/II/III]
___% Trust Preferred Securities
(Liquidation Amount $___ per Preferred Security)
Nextel Capital Trust [I/II/III], a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of _________ (_______) preferred
securities of the Trust constituting undivided beneficial interests in the
assets of the Trust and designated the Nextel Capital Trust [I/II/III] ___%
Trust Preferred Securities (Liquidation Amount $____ per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust, dated as of ___________, 200__, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of Preferred Securities as set forth therein. The Holder of this
certificate is entitled to the benefits of a guarantee by Nextel Communications,
Inc., a Delaware corporation (the "Company"), pursuant to a Guarantee Agreement
between the Company and _______________, as guarantee trustee, dated as of
___________, 200__, as the same may be amended from time to time (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder of this certificate without
charge upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
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IN WITNESS WHEREOF, the Administrative Trustee of the Trust has
executed this certificate this ____ day of ________, 20__.
NEXTEL CAPITAL TRUST [I/II/III]
By:
-------------------------------
, as
----------------------------
Administrative Trustee
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints ____________
as agent to transfer the Preferred Security or Preferred Securities evidenced by
this Certificate on the books of the 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 Certificate)
