EXHIBIT 4(n)
================================================================================
AMENDED AND RESTATED TRUST AGREEMENT
AMONG
CITIZENS BANKING CORPORATION,
AS DEPOSITOR
U.S. BANK NATIONAL ASSOCIATION,
AS PROPERTY TRUSTEE
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS DELAWARE TRUSTEE
AND
THE ADMINISTRATIVE TRUSTEES
NAMED HEREIN
DATED AS OF SEPTEMBER [*], 2006
CITIZENS FUNDING TRUST I
================================================================================
Citizens Funding Trust I
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 318(a) which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Amended and Restated Trust Agreement,
dated as of September [*], 2006.
TRUST INDENTURE TRUST AGREEMENT
ACT SECTION SECTION
------------------------------------------------ ------------------
310 (a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)(E)
(b) 8.8, 10.10
(c) Not Applicable
311 (a) 8.13
(b) 8.13
(c) Not Applicable
312 (a) 5.7, 10.10
(b) 5.7, 10.10
(c) 5.7, 10.10
313 (a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 10.8
(d) 8.14(c)
314 (a) 8.15
(b) Not Applicable
(c)(1) 8.16
(c)(2) 8.16
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.1, 8.16
315 (a) 8.1(a), 8.3(a)
(b) 8.2, 10.8
(c) 8.1(a), 8.1(d)(iii)
(d) 8.1, 8.3
(e) Not Applicable
316 (a)(1)(A) Not Applicable
(a)(1)(B) 5.13(b)
(a)(2) Not Applicable
(b) 5.13(c)
(c) 6.7
317 (a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.10
318 (a) 10.10
-------------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINED TERMS.......................................................................... 1
SECTION 1.1. Definitions.................................................................... 1
ARTICLE II CONTINUATION OF THE ISSUER TRUST...................................................... 10
SECTION 2.1. Name........................................................................... 10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.................... 10
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses................ 10
SECTION 2.4. Issuance of the Capital Securities............................................. 10
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of Debentures..... 10
SECTION 2.6. Continuation of Trust.......................................................... 11
SECTION 2.7. Authorization to Enter into Certain Transactions............................... 11
SECTION 2.8. Assets of Trust................................................................ 15
SECTION 2.9. Title to Trust Property........................................................ 15
ARTICLE IV PAYMENT ACCOUNT....................................................................... 15
SECTION 3.1. Payment Account................................................................ 15
ARTICLE V DISTRIBUTIONS; REDEMPTION.............................................................. 15
SECTION 4.1. Distributions.................................................................. 15
SECTION 4.2. Redemption..................................................................... 16
SECTION 4.4. Subordination of Common Securities............................................. 18
SECTION 4.4. Payment Procedures............................................................. 19
SECTION 4.5. Tax Returns and Reports........................................................ 19
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust............................. 19
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions......................... 19
SECTION 4.8. Liability of the Holder of Common Securities................................... 20
SECTION 4.9. Exchanges...................................................................... 20
ARTICLE V TRUST SECURITIES CERTIFICATES.......................................................... 20
SECTION 5.1. Initial Ownership............................................................. 20
SECTION 5.2. The Trust Securities Certificates............................................. 20
SECTION 5.3. Execution and Delivery of Trust Securities Certificates....................... 21
SECTION 5.4. Book-Entry Capital Securities................................................. 21
SECTION 5.5. Registration of Transfer and Exchange of Capital Securities Certificates...... 23
-i-
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............ 26
SECTION 5.7. Persons Deemed Holders........................................................ 26
SECTION 5.8. Access to List of Holders' Names and Addresses................................ 26
SECTION 5.9. Maintenance of Office or Agency............................................... 26
SECTION 5.10. Appointment of Paying Agent................................................... 27
SECTION 5.11. Ownership of Common Securities by Depositor................................... 27
SECTION 5.12. Notices to Clearing Agency.................................................... 28
SECTION 5.13. Rights of Holders............................................................. 28
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING..................................................... 30
SECTION 6.1. Limitations on Voting Rights................................................... 30
SECTION 6.2. Notice of Meetings............................................................. 31
SECTION 6.3. Meetings of Holders of Capital Securities...................................... 31
SECTION 6.4. Voting Rights.................................................................. 31
SECTION 6.5. Proxies, Etc................................................................... 31
SECTION 6.6. Holder Action by Written Consent............................................... 32
SECTION 6.7. Record Date for Voting and Other Purposes...................................... 32
SECTION 6.8. Acts of Holders................................................................ 32
SECTION 6.9. Inspection of Records.......................................................... 33
ARTICLE VII REPRESENTATIONS AND WARRANTIES....................................................... 33
SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware
Trustee............................................................... 33
SECTION 7.2. Representations and Warranties of Depositor.................................... 34
ARTICLE VIII THE ISSUER TRUSTEES................................................................. 34
SECTION 8.1. Certain Duties and Responsibilities........................................... 34
SECTION 8.2. Certain Notices............................................................... 36
SECTION 8.3. Certain Rights of Property Trustee............................................ 36
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities........................ 39
SECTION 8.5. May Hold Securities........................................................... 39
SECTION 8.6. Compensation; Indemnity; Fees................................................. 39
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees...................................................................... 40
SECTION 8.8. Conflicting Interests......................................................... 40
SECTION 8.9. Co-Trustees and Separate Trustee.............................................. 41
SECTION 8.10. Resignation and Removal; Appointment of Successor............................. 42
SECTION 8.11. Acceptance of Appointment by Successor........................................ 43
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business................... 44
SECTION 8.13. Preferential Collection of Claims Against Depositor or the Issuer Trust....... 44
SECTION 8.14. Reports by Property Trustee................................................... 45
-ii-
SECTION 8.15. Reports to the Property Trustee............................................... 45
SECTION 8.16. Evidence of Compliance with Conditions Precedent.............................. 45
SECTION 8.17. Number of Issuer Trustees..................................................... 46
SECTION 8.18. Delegation of Power........................................................... 46
SECTION 8.19. Appointment of Administrative Trustees........................................ 46
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER................................................... 47
SECTION 9.1. Dissolution Upon Expiration Date............................................... 47
SECTION 9.2. Early Termination.............................................................. 47
SECTION 9.3. Termination.................................................................... 47
SECTION 9.4. Liquidation.................................................................... 47
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Issuer Trust..... 49
ARTICLE X MISCELLANEOUS PROVISIONS............................................................... 50
SECTION 10.1. Limitation of Rights of Holders.............................................. 50
SECTION 10.2. Amendment.................................................................... 50
SECTION 10.3. Separability................................................................. 51
SECTION 10.4. Governing Law................................................................ 51
SECTION 10.5. Payments Due on Non-Business Day............................................. 51
SECTION 10.6. Successors................................................................... 52
SECTION 10.7. Headings..................................................................... 52
SECTION 10.8. Reports, Notices and Demands................................................. 52
SECTION 10.9. Agreement Not to Petition.................................................... 52
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act....................... 53
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.............. 53
SECTION 10.12. Counterparts................................................................. 53
SECTION 10.13. Waiver of Jury Trial......................................................... 53
SECTION 10.14. Force Majeure................................................................ 53
-iii-
AMENDED AND RESTATED TRUST AGREEMENT, dated as of September [*], 2006,
among (i) CITIZENS BANKING CORPORATION, a Michigan corporation (including any
successors or assigns, the "Depositor"), (ii) U.S. Bank National Association, a
national banking association, as property trustee (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) U.S. Bank Trust National
Association, a national banking association, as Delaware trustee (the "Delaware
Trustee"), (iv) Xxxxxx Xxxxxx, an individual, and Xxxxxx X. Xxxxxxxxx, an
individual, each of whose address is c/o Citizens Banking Corporation, 000 X.
Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees being referred to collectively as the
"Issuer Trustees") and (v) the several HOLDERS, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Issuer Trustees have heretofore duly
declared and established a statutory trust pursuant to the Delaware Statutory
Trust Act by entering into that certain Trust Agreement, dated as of September
[*], 2006 (the "Original Trust Agreement"), and by the execution and filing by
the Issuer Trustees with the Secretary of State of the State of Delaware of the
Certificate of Trust (the "Certificate of Trust"), filed on September [*], 2006,
attached as Exhibit A; 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 issuance of the Common Securities by the Issuer Trust to the
Depositor, (ii) the issuance and sale of the Capital Securities by the Issuer
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the
Issuer Trust from the Depositor of all of the right, title and interest in the
Debentures and (iv) the appointment of the Administrative Trustees;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Trust Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) 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;
(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; and
(e) unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor statute,
rule or regulation thereto) as it may be amended from time to time.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustees" means each Person appointed in accordance with
Section 8.19 solely in such Person's capacity as Administrative Trustee of the
Issuer Trust and not in such Person's individual capacity, or any successor
Administrative Trustee appointed as herein provided. The initial Administrative
Trustees are Xxxxxx Xxxxxx and Xxxxxx X. Xxxxxxxxx.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that the Issuer Trust
shall not be deemed an Affiliate of the Depositor. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving Book-Entry Capital Securities, the rules and procedures of the
Clearing Agency for such Book-Entry Capital Securities, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
-2-
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Issuer Trustees.
"Book-Entry Capital Securities" means a beneficial interest in a Global
Capital Securities Certificate, the ownership and transfers of which shall be
made through book entries by a Clearing Agency as described in Section 5.4.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed, or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Capital Securities Certificate" means a certificate evidencing Capital
Securities, substantially in the form attached as Exhibit D.
"Capital Security" means a preferred undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, known as "Enhanced Trust
Preferred Securities," including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Depositor and DTC, as the initial Clearing Agency, dated as of the
Closing Date, relating to the Trust Securities Certificates, substantially in
the form attached as Exhibit B, as the same may be amended and supplemented from
time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"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.
-3-
"Closing Date" has the meaning given to such term in the Underwriting
Agreement, which date is also the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Trust Agreement 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 Securities Certificate" means a certificate evidencing Common
Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the designated office of the Property Trustee located in New York, New
York which on the date of this Trust Agreement is 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxx, Xxx Xxxx 00000 - Attention: Corporate Trust Services, and (ii) when
used with respect to the Debenture Trustee, its Corporate Trust Office as
defined in the Indenture.
"Debenture Event of Default" means a "Debenture Default" as defined in the
Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means U.S. Bank National Association, a national
banking association, and any successor thereto.
"Debentures" means the aggregate principal amount of the Depositor's [*]%
Junior Subordinated Debentures due 2066, issued pursuant to the Indenture.
"Definitive Capital Securities Certificates" means either or both (as the
context requires) of (a) Capital Securities Certificates issued as Book-Entry
Capital Securities as provided in Section 5.2 or 5.4 and (b) Capital Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.2, 5.4 or 5.5.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. 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 Issuer Trust and not in its individual capacity, or its successor
in interest in such capacity, or any successor trustee appointed as herein
provided.
-4-
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.13(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distribution Rate" means, with respect to any Distribution Period, a rate
per annum equal to the Interest Rate (as defined in the Debentures) with respect
to the Interest Period under (and as defined in) the Debentures that begins on
the same date as such Distribution Period begins and ends on the same date as
such Distribution Period ends.
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 3.12 of the
Indenture.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Capital Securities Certificate" means a Capital Securities
Certificate that is registered in the Security Register in the name of a
Clearing Agency or a nominee thereof.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and U.S. Bank National Association, as trustee, for the benefit of the
holders of the Capital Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is or are registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Statutory Trust Act;
provided, however, that in determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided for in this Trust
Agreement, then for the purpose of any such determination, so long as Definitive
Capital Securities Certificates have not been issued, the term Holders as used
herein shall refer to the Owners, notwithstanding the provisions of Section 5.7
of this Trust Agreement.
"Indenture" means the Indenture, dated as of September [*], 2006, between
the Depositor and the Debenture Trustee, as trustee, as supplemented or amended
from time to time.
"Issuer Trust" means the statutory trust created under the laws of the
State of Delaware and identified on the cover page to this Trust Agreement.
-5-
"Issuer Trustees" means the parties identified as the "Issuer Trustees" in
the preamble to this Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture,
the proceeds of which will be used to pay the Redemption Price of such Trust
Securities, (b) with respect to a distribution of Debentures to Holders in
connection with a dissolution or liquidation of the Issuer Trust, Debentures
having a principal amount equal to the aggregate Liquidation Amount of the Trust
Securities of the Holder to whom such Debentures are distributed, and (c) with
respect to a distribution of Debentures to the Depositor or any of its
Affiliates pursuant to Section 4.9, Debentures having a principal amount equal
to the aggregate Liquidation Amount of the Capital Securities of the Depositor
or its Affiliate(s) to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which the Debentures are distributed
to the Holders pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended from time
to time.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary, of
the Depositor, and delivered to the appropriate Issuer Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 8.16 shall
be the principal executive, financial or accounting officer of the Depositor.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
-6-
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer Trust, the Property Trustee or the Depositor and who
shall be reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Securities
Registrar or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that, if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered pursuant
to Sections 5.4, 5.5, and 5.6;
provided, however, that in determining whether the Holders of the requisite
aggregate Liquidation Amount of the Outstanding Capital Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Capital Securities owned by the Depositor, any Issuer Trustee or any
Affiliate of the Depositor or any Issuer Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any Issuer Trustee
or any Administrative Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Capital Securities that a Responsible Officer of such Issuer Trustee or such
Administrative Trustee, as the case may be, actually knows to be so owned shall
be so disregarded, and (b) the foregoing shall not apply at any time when all of
the outstanding Capital Securities are owned by the Depositor, one or more of
the Issuer Trustees, one or more of the Administrative Trustees and/or any such
Affiliate. Capital Securities so owned that have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Capital Securities and that the pledgee is not the Depositor or any Affiliate of
the Depositor.
"Owner" means each Person who is the beneficial owner of Book-Entry
Capital Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
-7-
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Holders in which all amounts paid in respect of the
Debentures will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Holders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Property Trustee" means the Person identified as the "Property Trustee"
in the preamble to this Trust Agreement solely in its capacity as Property
Trustee of the Issuer Trust 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 Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant treasurer, assistant secretary,
or any other officer of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers, and also,
with respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject and with respect to the Delaware Trustee, any officer of the
Delaware Trustee customarily performing functions similar to those performed by
any of the above designated officers, and also, with respect to a particular
matter, any other officer, to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5(a).
"Successor Capital Security" of any particular Capital Security means
every Capital Security issued after, and evidencing all or a portion of the same
beneficial interest in the Issuer Trust as that evidenced by, such particular
Capital Security; and, for the purposes of this definition, any Capital Security
executed and delivered under Section 5.6 in exchange for or in
-8-
lieu of a mutilated, destroyed, lost or stolen Capital Security shall be deemed
to evidence the same beneficial interest as the mutilated, destroyed, lost or
stolen Capital Securities Certificate.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto and (ii) for all purposes
of this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Event of Default" means any one of the following events (whatever
the reason for such Trust 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):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a period
of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in this Trust Agreement
(other than a covenant or warranty a default in the performance or breach of
which is described in clause (b) or (c) above) and continuation of such default
or breach for a period of 60 days after there has been given, by registered or
certified mail, to the Issuer Trustees and the Depositor by the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Capital Securities
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and a successor Property Trustee not being appointed within 90
days thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Trust Agreement is executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
-9-
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Underwriting Agreement" means the Underwriting Agreement and the Pricing
Agreement, each dated as of September [*], 2006, among the Issuer Trust, the
Depositor and the Underwriters named therein, as the same may be amended from
time to time.
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name. The Issuer Trust continued hereby shall be known as
"Citizens Funding Trust I," as such name may be modified from time to time by
the Administrative Trustees following written notice to the Holders of Trust
Securities and the Issuer Trustees, in which name the Issuer Trustees may
conduct the business of the Issuer Trust, make and execute contracts and other
instruments on behalf of the Issuer Trust and xxx and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is 000 Xxxx
Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Holders and the Depositor. The principal executive office of the Issuer
Trust is in care of Citizens Banking Corporation, 000 X. Xxxxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000, Attn: Corporate Treasury.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Issuer Trust as they arise or shall, upon request of any Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
SECTION 2.4. Issuance of the Capital Securities. On September [*], 2006,
the Depositor, both on its own behalf and on behalf of the Issuer Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Issuer Trust,
shall execute in accordance with Sections 5.2, 5.3 and 8.9(a) and deliver to the
Underwriters, Capital Securities Certificates, registered in the names requested
by the Underwriters or a representative thereof, evidencing [*] Capital
Securities having an aggregate Liquidation Amount of $[*], against receipt of
the aggregate purchase price for such Capital Securities of $[*] by the Property
Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust, shall
execute in accordance with Sections 5.2 and 5.3 and shall deliver to the
Depositor Common Securities Certificates, registered in the name of the
Depositor, evidencing [*] Common Securities having an aggregate Liquidation
Amount of $[*] against payment by the Depositor of such amount to the Property
Trustee. Contemporaneously therewith, an Administrative Trustee, on behalf of
the Issuer Trust, shall
-10-
subscribe for and purchase from the Depositor the Debentures, registered in the
name of the Property Trustee on behalf of the Issuer Trust and having an
aggregate principal amount equal to $[*], and, in satisfaction of the purchase
price for such Debentures, the Property Trustee, on behalf of the Issuer Trust,
shall deliver to the Depositor the sum of $[*] (being the sum of the amounts
delivered to the Property Trustee pursuant to (i) Section 2.4 and (ii) this
Section 2.5).
SECTION 2.6. Continuation of Trust. The exclusive purposes and functions
of the Issuer Trust are (a) to issue and sell Trust Securities and to use the
proceeds from such sale to acquire the Debentures, and (b) to engage in only
those activities necessary or incidental thereto. The Depositor hereby appoints
the Issuer Trustees as trustees of the Issuer Trust, to have all the rights,
powers and duties to the extent set forth herein, and the Issuer Trustees hereby
accept such appointment. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Issuer Trust and the Holders. The Administrative Trustees
shall have only those ministerial duties set forth herein with respect to
accomplishing the purposes of the Issuer Trust and, to the fullest extent
permitted by law, shall not be fiduciaries with respect to the Issuer Trust or
the Holders. 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 Issuer Trustees of the Issuer Trust for the
sole and limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Statutory Trust Act and for taking such actions as are required to be
taken by a Delaware Trustee under the Delaware Statutory Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer
Trust in accordance with the terms of this Trust Agreement. Subject to the
limitations set forth in paragraph (b) of this Section 2.7, and in accordance
with the following provisions (i) and (ii), the Issuer Trustees shall have the
authority to enter into all transactions and agreements determined by the Issuer
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Issuer Trustees, as the case may be, under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
(i) Each Administrative Trustee shall have the power and
authority to act on behalf of the Issuer Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to
execute and deliver on behalf of the Issuer Trust such agreements as may
be necessary in connection with or incidental to the purposes and function
of the Issuer Trust;
(C) assisting in the registration of the Capital
Securities under the Securities Act and under applicable state securities
or blue sky laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
-11-
(D) assisting in the listing of the Capital Securities
upon such securities exchange or exchanges as shall be determined by the
Depositor, with the registration of the Capital Securities under the
Exchange Act, and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Debentures to the Holders in accordance with this Trust Agreement;
(F) the consent to the appointment of a Paying Agent and
Securities Registrar in accordance with this Trust Agreement (which
consent shall not be unreasonably withheld);
(G) the execution of the Trust Securities in accordance
with this Trust Agreement;
(H) the execution and delivery of closing certificates
pursuant to the Underwriting Agreement and the application for a taxpayer
identification number for the Issuer Trust;
(I) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Issuer Trust and the
preparation and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(J) unless otherwise required by applicable law, the
execution on behalf of the Issuer Trust (either acting alone or together
with any or all of the Administrative Trustees) of any documents that the
Administrative Trustees have the power to execute pursuant to this Trust
Agreement; and
(K) the taking of any action incidental to the foregoing
as the Administrative Trustees may from time to time determine is
necessary to give effect to the terms of this Trust Agreement for the
benefit of the Holders (without consideration of the effect of any such
action on any particular Holder).
(ii) The Property Trustee shall have the power, duty, except
as otherwise provided herein, and authority to act on behalf of the Issuer
Trust with respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures and the holding of such amounts
in the Payment Account;
-12-
(D) the distribution through the Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures to the
Holders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Issuer Trust and the
execution and filing of the certificate of cancellation with the Secretary
of State of the State of Delaware; and
(I) after a Trust Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term if such
Trust Event of Default is by or with respect to the Property Trustee) the
taking of any action incidental to the foregoing as the Property Trustee
may from time to time determine is necessary or advisable to give effect
to the terms of this Trust Agreement and protect and conserve the Trust
Property for the benefit of the Holders (without consideration of the
effect of any such action on any particular Holder).
(b) So long as this Trust Agreement remains in effect, the Issuer
Trust (or the Issuer Trustees or Administrative Trustees acting on behalf of the
Issuer Trust) shall not undertake any business, activities or transaction except
as expressly provided herein or contemplated hereby. In particular, the Issuer
Trustees shall not (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) incur any indebtedness for borrowed money or issue any other debt or (iv)
take or consent to any action that would result in the placement of a Lien on
any of the Trust Property. The Property Trustee shall, at the sole cost and
expense of the Issuer Trust, defend all claims and demands of all Persons at any
time claiming any Lien on any of the Trust Property adverse to the interest of
the Issuer Trust or the Holders in their capacity as Holders. Notwithstanding
anything herein to the contrary, the Issuer Trust (or the Issuer Trustees or
Administrative Trustees acting on behalf of the Issuer Trust) shall not take any
action that would or would reasonably be expected to cause the Issuer Trust to
be classified as an association taxable as a corporation or as other than a
grantor trust for United States federal income tax purposes.
(c) In connection with the issue and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in
-13-
furtherance of the following prior to the date of this Trust Agreement are
hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a registration
statement on the appropriate form in relation to the Capital Securities,
including any amendments thereto, and the taking of any action necessary or
desirable to sell the Capital Securities in a transaction or a series of
transactions pursuant thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the Capital
Securities and the determination of any and all such acts, other than actions
which must be taken by or on behalf of the Issuer Trust, and the advice to
the Issuer Trust of actions they must take on behalf of the Issuer Trust, and
the preparation for execution and filing of any documents to be executed and
filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor
deems necessary or advisable in order to comply with the applicable laws of
any such States in connection with the sale of the Capital Securities;
(iii) if the Depositor shall desire, the preparation for
filing by the Issuer Trust and execution on behalf of the Issuer Trust of an
application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq Global Select Market for listing, upon notice of
issuance, of any Capital Securities;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a registration
statement on Form 8-A relating to the registration of the Capital Securities
under Section 12(b) or 12(g) of the Exchange Act, including any amendments
thereto;
(v) the preparation and execution of a Letter of
Representations to The Depository Trust Company on behalf of the Issuer
Trust;
(vi) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the Capital
Securities; and
(vii) the taking of any other actions necessary or incidental
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will
not be deemed to be an "investment company" required to be registered under the
1940 Act, or to be classified as an association taxable as a corporation or as
other than a grantor trust for United States federal income tax purposes and so
that the Debentures will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, the Administrative
Trustees are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that each Administrative
Trustee determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the Holders of the Capital Securities. In no event
shall the Administrative Trustees be liable to
-14-
the Issuer Trust or the Holders for any failure to comply with this section that
results from a change in law or regulation or interpretation thereof.
SECTION 2.8. Assets of Trust. The assets of the Issuer Trust shall consist
of the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Issuer Trust and the Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by or on behalf of the Property Trustee in the Payment
Account for the exclusive benefit of the Holders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit or cause to be deposited in
the Payment Account, promptly upon receipt, all payments of principal of or
interest on, and any other payments or proceeds with respect to, the Debentures.
Amounts held in the Payment Account shall not be invested by or on behalf of the
Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall accrue from,
and, except in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Debentures pursuant to the
Indenture, shall be payable quarterly in arrears on March 15, June 15,
September 15 and December 15 of each year, commencing on December 15, 2006.
If any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution shall
be
-15-
made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next 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 the date such payment was
originally payable (each date on which Distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(ii) Distributions shall accumulate in respect of the Capital
Securities at a rate of [*]% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any period less than a
full Distribution period shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days elapsed in a partial month
in a period. Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by four. The amount of Distributions
payable for any period shall include any Additional Amounts in respect of
such period.
(iii) Distributions on the Trust Securities shall be made by
or on behalf of the Property Trustee from the Payment Account and shall be
payable on each Distribution Date only to the extent that the Issuer Trust
has funds then on hand and available in the Payment Account for the payment
of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be (i) the Business Day next preceding the
relevant Distribution Date if the Capital Securities are issued in the form of
Book-Entry Global Capital Securities or (ii) the March 15, June 15, September 15
or December 15 next preceding the relevant Distribution Date if the Capital
Securities are not issued in the form of Book-Entry Global Capital Securities.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of
the Debentures, the Issuer Trust will be required to redeem a Like Amount of
Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture together
with a statement that it is an estimate and that the actual Redemption Price
will be calculated on the third Business Day prior to the Redemption Date
(and if an estimate is provided, a further notice shall be
-16-
sent of the actual Redemption Price on the date that notice of such actual
Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number or CUSIP numbers of the Capital
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on or after said date, except
as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and
related materials. The Depositor shall promptly notify the Property Trustee in
writing of any change in the CUSIP number(s).
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Capital Securities, then, by 11:00 a.m., New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Capital Securities, irrevocably deposit with the Clearing
Agency for such Book-Entry Capital Securities, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Owners thereof. With respect to Capital Securities that are not
Book-Entry Capital Securities, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will give
the Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the Holders thereof upon surrender of their Capital Securities
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
-17-
required, then upon the date of such deposit, all rights of Holders of Trust
Securities so called for redemption will cease, except the right of such Holders
to receive the Redemption Price including any unpaid Distribution payable on or
prior to the Redemption Date, but without interest, and such Trust Securities
will cease to be Outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accumulate as set forth in Section 4.1, from the Redemption Date
originally established by the Issuer Trust for such Trust Securities to the date
such Redemption Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating the Redemption
Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Capital Securities. The particular Capital Securities to be redeemed shall
be selected on a pro rata basis (based upon Liquidation Amounts) not more than
60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Capital Securities not previously called for redemption, provided
that, so long as the Capital Securities are in book-entry-only form, such
selection shall be made in accordance with the customary procedures for the
Clearing Agency for the Capital Securities. The Property Trustee shall promptly
notify the Securities Registrar in writing of the Capital Securities selected
for redemption and, in the case of any Capital Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Capital Securities shall relate, in the case of
any Capital Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Capital Securities that has been or is to be
redeemed.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on,
and the Redemption Price of, the Trust Securities, as applicable, shall be made,
subject to Section 4.2(e), pro rata (based on Liquidation Amounts) among the
Common Securities and the Capital Securities; provided, however, that if on any
Distribution Date or Redemption Date any Trust Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including any Additional Amounts) on, or Redemption Price of,
any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions (including
any Additional Amounts) on all Outstanding Capital Securities for all
Distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price the full amount of such Redemption Price on all
Outstanding Capital Securities, shall have been made or provided for,
-18-
and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including any
Additional Amounts) on, or the Redemption Price of, Capital Securities then due
and payable.
(b) In the case of the occurrence of any Trust Event of Default
resulting from any Debenture Event of Default, the Holder of Common Securities
will be deemed to have waived any right to act with respect to any such Trust
Event of Default under this Trust Agreement until the effect of all such Events
of Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until any such Trust Event of Default under this Trust
Agreement with respect to the Capital Securities has been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Capital Securities will have the right
to direct the Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures. Payments of Distributions (including
Additional Amounts, if applicable) in respect of the Capital Securities shall be
made by check mailed to the address of the Holder entitled thereto as such
address shall appear on the Securities Register or, if the Capital Securities
are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, which shall credit the relevant Holders'
accounts at such Clearing Agency on the applicable Distribution Dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
SECTION 4.5. Tax Returns and Reports. The Administrative Trustees shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Issuer Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service Form required to be filed in
respect of the Issuer Trust in each taxable year of the Issuer Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to each Holder the
appropriate Internal Revenue Service form required to be provided by the Issuer
Trust. The Administrative Trustees shall provide the Depositor and the Property
Trustee with a copy of all such returns and reports promptly after such filing
or furnishing. The Property Trustee shall cause the Paying Agent to comply with
United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust. Upon
receipt under the Debentures of Additional Sums, the Property Trustee shall
promptly pay with moneys provided by the Depositor any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed
on the Issuer Trust by the United States or any other taxing authority.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions. Any
amount payable hereunder to any Holder of Capital Securities shall be reduced by
the amount of any corresponding payment such Holder (or an Owner with respect to
the Holder's Capital Securities) has directly received pursuant to Section 5.8
of the Indenture or Section 5.13 of this Trust Agreement.
-19-
SECTION 4.8. Liability of the Holder of Common Securities. Any Holder of
the Common Securities shall be liable for all costs, expenses or liabilities of
the Issuer Trust, other than to pay to Holders of any Capital Securities the
amounts due to such holders pursuant to the terms of the Capital Securities, and
such costs, expenses or liabilities shall constitute unsecured obligations of
the Holder of the Common Securities.
SECTION 4.9. Exchanges.
(a) If at any time the Depositor or any of its Affiliates (in either
case, a "Depositor Affiliated Owner/Holder") is the Owner or Holder of any
Capital Securities, such Depositor Affiliated Owner/Holder shall have the right
to deliver to the Property Trustee all or such portion of its Capital Securities
as it elects and receive, in exchange therefor, a Like Amount of Debentures.
Such election (i) shall be exercisable effective on any Distribution Date by
such Depositor Affiliated Owner/Holder delivering to the Property Trustee a
written notice of such election specifying the Liquidation Amount of the Capital
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 such
Depositor Affiliated Owner/Holder having delivered or caused to be delivered to
the Property Trustee or its designee the Capital Securities which are the
subject of such election by 10:00 A.M. New York time, on the Distribution Date
on which such exchange is to occur. After the exchange, such Capital Securities
will be cancelled and will no longer be deemed to be Outstanding and all rights
of the Depositor or its Affiliate(s) with respect to such Capital Securities
will cease.
(b) In the case of an exchange described in Section 4.9(a), the
Issuer Trust will, on the date of such exchange, exchange Debentures 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 Capital Securities exchanged pursuant to Section
4.9(a) divided by the aggregate Liquidation Amount of the Capital Securities
Outstanding immediately prior to such exchange, for such proportional amount of
Common Securities held by the Depositor (which contemporaneously shall be
cancelled and no longer be deemed to be Outstanding); provided, that the
Depositor 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 time, on the Distribution Date on which such exchange is to occur.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the creation of the Issuer Trust and
the contribution by the Depositor pursuant to Section 2.3 and until the issuance
of the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Issuer
Trust.
SECTION 5.2. The Trust Securities Certificates.
-20-
(a) The Capital Securities Certificates and the Common Securities
Certificates shall be issued in denominations of $25 Liquidation Amount and
integral multiples thereof. The Trust Securities Certificates shall be executed
on behalf of the Issuer Trust by manual or facsimile signature of at least one
Administrative Trustee. Trust Securities Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Issuer Trust, shall
be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Holder, and shall be entitled to the rights and subject to the obligations of a
Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates
shall be issued in the form of one or more Global Capital Securities
Certificates registered in the name of DTC, as Clearing Agency, or its nominee
and deposited with DTC or a custodian for DTC for credit by DTC to the
respective accounts of the Owners thereof (or such other accounts as they may
direct).
(c) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates. At
the Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Issuer Trust by manual or facsimile
signature and delivered to or upon the written order of the Depositor, signed by
its chairman of the board, its president, any executive vice president or any
vice president, treasurer or assistant treasurer or controller without further
corporate action by the Depositor, in authorized denominations.
Upon a written order of the Issuer Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Capital Securities
Certificates for original issue.
The Property Trustee may appoint an authenticating agent acceptable to the
Administrative Trustees to authenticate Capital Securities Certificates. An
authenticating agent may authenticate Capital Securities Certificates whenever
the Property Trustee may do so. Each reference in this Trust Agreement to
authenticate by the Property Trustee includes authentication by such Agent. An
authenticating agent has the same rights as the Property Trustee to deal with
the Depositor or an Affiliate.
SECTION 5.4. Book-Entry Capital Securities. As provided in Section 5.2(b),
Capital Securities, upon original issuance, will be issued in the form of Global
Capital Securities Certificates representing Book-Entry Capital Securities, to
be delivered to DTC or its nominee by, or on behalf of, the Issuer Trust. Such
Global Capital Securities Certificates shall initially be registered on the
Securities Register in the name of Cede & Co., the nominee of DTC, and no
-21-
Owner will receive a Definitive Capital Securities Certificate representing such
Owner's interest in such Capital Securities, except as provided in this Section
5.4.
(a) Each Global Capital Securities Certificate issued under this
Trust Agreement shall be registered in the name of the Clearing Agency or a
nominee thereof designated by the Depositor for the related Book-Entry Capital
Securities and delivered to such Clearing Agency or a nominee thereof or
custodian therefor and each such Global Capital Securities Certificate shall
constitute a single Capital Securities Certificate for all purposes of this
Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no
Global Capital Securities Certificate may be exchanged in whole or in part for
Capital Securities Certificates registered, and no transfer of a Global Capital
Securities Certificate in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Capital Securities
Certificate or a nominee thereof unless (i) the Clearing Agency advises the
Depositor and the Property Trustee in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Global Capital Securities Certificates, and the Depositor is unable to
locate a qualified successor, (ii) the Depositor at its option advises the
Clearing Agency in writing that it elects to terminate the book-entry system
through the Clearing Agency, or (iii) a Debenture Event of Default has occurred
and is continuing and the Holders of a majority in Liquidation Amount of the
Capital Securities determine to discontinue the book-entry system through the
Clearing Agency. Upon the occurrence of any event specified in clause (i), (ii)
or (iii) above, the Administrative Trustees shall notify the Clearing Agency and
the Clearing Agency shall notify all Owners of Book-Entry Capital Securities,
the Property Trustee and the Administrative Trustees of the occurrence of such
event and of the availability of the Definitive Capital Securities Certificates
to Owners of such class or classes, as applicable, requesting the same.
(c) If any Global Capital Securities Certificate is to be exchanged
for other Capital Securities Certificates or cancelled in part, or if another
Capital Securities Certificate is to be exchanged in whole or in part for a
beneficial interest in any Global Capital Securities Certificate, then either
(i) such Global Capital Securities Certificate shall be so surrendered for
exchange or cancellation as provided in this Article Five or (ii) the aggregate
Liquidation Amount represented by such Global Capital Securities Certificate
shall be reduced, subject to Section 5.2, or increased by an amount equal to the
Liquidation Amount represented by that portion of the Global Capital Securities
Certificate to be so exchanged or cancelled, or equal to the Liquidation Amount
represented by such other Capital Securities Certificates to be so exchanged for
Global Capital Securities represented thereby, as the case may be, by means of
an appropriate adjustment made on the records of the Securities Registrar,
whereupon the Property Trustee, in accordance with the Applicable Procedures,
shall instruct the Clearing Agency or its authorized representative to make a
corresponding adjustment to its records. Upon surrender to the Administrative
Trustees or the Securities Registrar of the Global Capital Securities
Certificate or Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute the
Definitive Capital Securities Certificates in accordance with the instructions
of the Clearing Agency. None of the Securities Registrar or the Issuer Trustees
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in conclusively, relying on, such
instructions.
-22-
Upon the issuance of Definitive Capital Securities Certificates, the Issuer
Trustees shall recognize the Holders of the Definitive Capital Securities
Certificates as Holders. The Definitive Capital Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
(d) Every Capital Securities Certificate executed and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Capital
Securities Certificate or any portion thereof, whether pursuant to this Article
V or Article IV or otherwise, shall be executed and delivered in the form of,
and shall be, a Global Capital Securities Certificate, unless such Capital
Securities Certificate is registered in the name of a Person other than the
Clearing Agency for such Global Capital Securities Certificate or a nominee
thereof.
(e) The Clearing Agency or its nominee, as registered owner of a
Global Capital Securities Certificate, shall be the Holder of such Global
Capital Securities Certificate for all purposes under this Trust Agreement and
the Global Capital Securities Certificate, and Owners with respect to a Global
Capital Securities Certificate shall hold such interests pursuant to the
Applicable Procedures. The Securities Registrar and the Issuer Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Book-Entry Capital Securities (including the payment
of the Liquidation Amount of and Distributions on the Capital Securities
evidenced by Book-Entry Capital Securities and the giving of instructions or
directions to Owners of Capital Securities evidenced by Book-Entry Capital
Securities) as the sole Holder of Capital Securities evidenced by the Book-Entry
Capital Securities and shall have no obligations to the Owners thereof. Neither
the Property Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected, or for any other actions taken or not taken,
by the Clearing Agency.
The rights of the Owners of the Book-Entry Capital Securities shall be
exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Capital Securities
Certificates are issued pursuant to Section 5.4(b), the initial Clearing Agency
will make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments on the Capital Securities to such Clearing Agency
Participants, and none of the Depositor or the Issuer Trustees shall have any
responsibility or obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of Capital Securities
Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.9, a register or registers for
the purpose of registering Trust Securities Certificates and transfers and
exchanges of Capital Securities Certificates (the "Securities Register") in
which the registrar designated by the Property Trustee (the "Securities
Registrar") with the reasonable consent of the Administrative Trustees, subject
to such reasonable regulations as it may prescribe, shall provide for the
registration of Capital Securities Certificates and Common Securities
Certificates (subject to Section 5.11 in the case of the
-23-
Common Securities Certificates) and registration of transfers and exchanges of
Capital Securities Certificates as herein provided. The Property Trustee shall
be the initial Securities Registrar.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrative Trustees or any one of them shall execute by manual or facsimile
signature and deliver to the Property Trustee for further delivery, in the name
of the designated transferee or transferees, one or more new Capital Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Administrative Trustee.
The Securities Registrar shall not be required to register the transfer of
any Capital Securities that have been called for redemption. At the option of a
Holder, Capital Securities Certificates may be exchanged for other Capital
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Capital Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.9.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each Capital
Securities Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Property Trustee or
Securities Registrar in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Capital Securities
Certificates. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to
the Bank also in its role as Securities Registrar, for so long as the Bank shall
act as Securities Registrar.
Whenever this Trust Agreement makes reference to the execution of Trust
Securities Certificates, such reference to execution shall mean manual execution
by an Administrative Trustee or, in the alternative, execution by facsimile
signature by an Administrative Trustee and authentication (in the case of
Capital Securities Certificates only) by the Property Trustee.
Capital Securities Certificates bearing the manual or facsimile signatures
of individuals who were at any time the proper Administrative Trustees of the
Issuer Trust shall bind the Issuer Trust, notwithstanding that such individuals
or any of them have ceased to hold such office prior to the authentication and
delivery of such Capital Securities Certificates or did not hold such offices at
the date of such Capital Securities Certificates.
Each Capital Securities Certificate that is executed by facsimile and
authenticated by the Property Trustee shall be dated the date of its
authentication.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Trust Agreement, transfers and exchanges of Capital Securities
Certificates and beneficial
-24-
interests in Book-Entry Capital Securities of the kinds specified in this
Section 5.5(b) shall be made only in accordance with this Section 5.5(b).
(i) Non-Global Capital Securities Certificate to Global
Capital Securities Certificate. If the Holder of a Capital Securities
Certificate (other than a Global Capital Securities Certificate) wishes at
any time to transfer all or any portion of the Capital Securities
represented thereby to a Person who wishes to take delivery thereof in the
form of Book-Entry Capital Securities represented by a Global Capital
Securities Certificate, such transfer may be effected only in accordance
with the provisions of this Clause (b)(i) and subject to the Applicable
Procedures. Upon receipt by the Securities Registrar of such Capital
Securities Certificate as provided in Section 5.5(a) and instructions
satisfactory to the Securities Registrar directing that a specified number
of Capital Securities to be represented by the Global Capital Securities
Certificate not greater than the number of Capital Securities represented
by such Capital Securities Certificate be credited to a specified Clearing
Agency Participant's account and then the Securities Registrar shall
cancel such Capital Securities Certificate (and issue a new Capital
Securities Certificate in respect of any untransferred portion thereof) as
provided in Section 5.5(a) and increase the aggregate Liquidation Amount
of the Global Capital Securities Certificate by the Liquidation Amount
represented by such Capital Securities so transferred as provided in
Section 5.4(c).
(ii) Non-Global Capital Securities Certificate to Non-Global
Capital Securities Certificate. Capital Securities other than Book-Entry
Capital Securities may be transferred, in whole or in part, to a Person
who takes delivery in the form of a Capital Securities Certificate that is
not a Global Capital Securities Certificate as provided in Section 5.5(a).
(iii) Global Capital Securities Certificate to Non-Global
Capital Securities Certificate. Capital Securities represented by a Global
Capital Securities Certificate may be exchanged for a Capital Securities
Certificate that is not a Global Capital Securities Certificate as
provided in Section 5.4.
Before registering for transfer or exchange any Capital Securities
Certificates issued in certificated fully registered form as provided in
Sections 5.2, 5.4 or 5.5 of the Trust Agreement, the Property Trustee as
Securities Registrar may require an Opinion of Counsel or other evidence
satisfactory to it (which may include a certificate from such purchaser or
Holder) that such purchaser or Holder is eligible for the exemptive relief
available under U.S. Department of Labor Prohibited Transaction Class Exemption
("PTCE") 96-23, 95-60, 91-38, 90-1 or 84-14 or another applicable exemption with
respect to such purchase or holding and, in the case of any purchaser or Holder
relying on any exemption other than PTCE 96-23, 95-60, 91-38, 90-1 or 84-14, an
Opinion of Counsel or other evidence satisfactory to the Property Trustee with
respect to the availability of such exemption. Any purchaser or Holder of any
Capital Securities or any interest therein will be deemed to have represented by
its purchase and holding thereof that either (i) it is not a Plan and no part of
the assets to be used by it to purchase and/or hold such Capital Securities or
any interest therein constitutes "plan assets" of any Plan, or (ii) it is itself
a Plan or is purchasing or holding the Capital Securities or an interest therein
on behalf of or with "Plan Assets" of one or more Plans, and each such purchase
and holding of such securities either (A)
-25-
satisfies the requirements of, and is entitled to full exemptive relief under,
PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 (or some other applicable class or
individual exemption) (or, in the case of a non-ERISA Plan, a similar exemption
applicable to the transaction) or (B) will not result in a prohibited
transaction under ERISA or the Code or its equivalent under applicable similar
laws.
(c) The Property Trustee shall not be required to insure or verify
compliance with securities laws, including the Securities Act, Exchange Act and
1940 Act, in connection with transfers and exchanges of Capital Securities
Certificates. The Property Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Trust Agreement or under applicable law with respect to any transfer
of any interest in any Security other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Issuer Trust shall execute and make available for delivery, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Issuer Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.7. Persons Deemed Holders. The Issuer Trustees or the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving Distributions and for all
other purposes whatsoever, and neither the Issuer Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses. Each Holder
and each Owner shall be deemed to have agreed not to hold the Depositor, the
Property Trustee, the Delaware Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.9. Maintenance of Office or Agency. The Property Trustee shall
designate, with the consent of the Administrative Trustees, which consent shall
not be unreasonably withheld, an office or offices or agency or agencies where
Capital Securities Certificates may be surrendered for registration of transfer
or exchange and where notices and
-26-
demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Corporate Trust Office of the Property Trustee
is initially designated the office for such purpose. The Administrative Trustees
or the Property Trustee shall give prompt written notice to the Depositor and to
the Holders of any change in the location of the Securities Register or any such
office or agency.
SECTION 5.10. Appointment of Paying Agent. The Paying Agent shall make
Distributions to Holders from the Payment Account and shall report the amounts
of such Distributions to the Property Trustee and the Administrative Trustees.
Any Paying Agent shall have the revocable power to withdraw funds from the
Payment Account for the purpose of making the Distributions referred to above.
The Property Trustee may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agents shall initially be the Bank, and any
co-paying agent chosen by the Bank, and reasonably acceptable to the
Administrative Trustees. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees and the Property Trustee. In the event that the Bank shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor that is
reasonably acceptable to the Administrative Trustees to act as Paying Agent
(which shall be a bank or trust company). Such successor Paying Agent or any
additional Paying Agent shall execute and deliver to the Issuer Trustees an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Issuer Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Holders in trust for the benefit of the Holders entitled thereto until such
sums shall be paid to such Holders. The Paying Agent shall return all unclaimed
funds to the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in
its role as Paying Agent, for so long as the Bank shall act as Paying Agent and,
to the extent applicable, to any other paying agent appointed hereunder. Any
reference in this Trust Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor. At the Closing
Date, the Depositor shall acquire and retain beneficial and record ownership of
the Common Securities. Neither the Depositor nor any successor Holder of the
Common Securities may transfer less than all the Common Securities, and the
Depositor and any successor Holder may transfer the Common Securities only (i)
in connection with a consolidation or merger of the Depositor into another
Person, or any conveyance, transfer or lease by the Depositor of its properties
and assets substantially as an entirety to any Person, pursuant to Section 8.1
of the Indenture, or (ii) to the Depositor or an Affiliate of the Depositor in
compliance with applicable law (including the Securities Act and applicable
State securities and blue sky laws). To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the next
preceding sentence shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE
WITH SECTION 5.11 OF THE TRUST AGREEMENT".
-27-
SECTION 5.12. Notices to Clearing Agency. To the extent that a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Capital Securities Certificates shall have been issued to
all Owners pursuant to Section 5.4(b), the Issuer 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. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section 2.9,
and the Holders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Issuer Trust conferred by
their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Issuer Trust except as described
below. The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and, except to the extent set forth
in Section 4.8, when issued and delivered to Holders against payment of the
purchase price therefor will be fully paid and nonassessable undivided
beneficial interests in Trust Property. Except as set forth in Section 4.8, the
Holders, in their capacities as such, shall be entitled to the same limitation
of personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if,
upon a Debenture Event of Default under Section 5.1(a)(1) of the Indenture, the
Debenture Trustee fails or the holders of not less than 25% in aggregate
principal amount of the outstanding Debentures fail to declare the principal of
all of the Debentures to be immediately due and payable, the Holders of at least
25% in aggregate Liquidation Amount of the Capital Securities then Outstanding
shall have such right by a notice in writing to the Depositor and the Debenture
Trustee with a copy to the Property Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due and payable. Any payment of principal and interest on
such Debentures as described herein shall remain subordinated to the extent
provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of at least a majority in aggregate Liquidation Amount of
the Capital Securities, by written notice to the Property Trustee, the Depositor
and the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Debentures,
-28-
(B) the principal of (and premium, if any, on) any
Debentures which have become due otherwise than by such declaration
of acceleration and interest and Additional Interest thereon at the
rate borne by the Debentures, and
(C) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the Property
Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures which has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of at least a majority in aggregate Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Book-Entry Capital Securities,
a record date shall be established for determining Holders of Outstanding
Capital Securities entitled to join in such notice, which record date shall be
at the close of business on the day the Property Trustee receives such notice.
The Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section
5.1(a)(1), 5.1(b)(2) or 5.1(b)(3) of the Indenture, any Holder of Capital
Securities shall have the right to institute a proceeding directly against the
Depositor, pursuant to Section 5.8 of the Indenture, for enforcement of payment
to such Holder of the principal amount of or interest on Debentures having a
principal amount equal to the Liquidation Amount of the Capital Securities of
such Holder (a "Direct Action"),
-29-
provided that if such a Debenture Event of Default results from the failure to
pay interest on the Debentures on or by the next interest payment date following
a ten-year Extension Period, the Holders may not declare such principal amount
of the Debentures due and payable. Except as set forth in this Section 5.13, the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders of, or in respect of, the Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Issuer Trust, the
Property Trustee shall not (i) direct the time, method or place of conducting
any proceeding for any remedy available to the Debenture Trustee, or executing
any trust or power conferred on the Property Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Capital Securities, provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Capital Securities. The Issuer Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Capital Securities, except by a subsequent vote of the Holders of
Capital Securities. The Property Trustee shall notify all Holders of the Capital
Securities of any notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Capital Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor, receive an
Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Issuer Trust to be classified as an association taxable as a
corporation or as other than a grantor trust for United States federal income
tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Issuer Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the powers, preferences or special
rights of the Capital Securities, whether by way of amendment to this Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Issuer Trust, other than pursuant to the terms of this Trust Agreement, then
the Holders of Outstanding Capital Securities as a class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Capital Securities.
-30-
Notwithstanding any other provision of this Trust Agreement, no amendment to
this Trust Agreement may be made if, as a result of such amendment, it would
cause the Issuer Trust to be classified as an association taxable as a
corporation or as other than a grantor trust for United States federal income
tax purposes.
SECTION 6.2. Notice of Meetings. Notice of all meetings of Holders of
Capital Securities, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.8 to each such Holder at
such Holder's address as it appears in the Securities Register as of the record
date for such meeting. Such notice shall be sent, first-class mail, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
SECTION 6.3. Meetings of Holders of Capital Securities. No annual meeting
of Holders is required to be held. The Property Trustee, however, shall call a
meeting of Holders of Capital Securities to vote on any matter upon the written
request of the Holders of record of at least 25% of the aggregate Liquidation
Amount of Outstanding Capital Securities) and the Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a meeting of Holders
of Capital Securities to vote on any matters as to which Holders of Capital
Securities are entitled to vote.
Holders of at least 50% of the aggregate Liquidation Amount of Outstanding
Capital Securities, present in person or by proxy, shall constitute a quorum at
any meeting of Holders of Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders of
record present, in person or by proxy, holding at least a majority of the
Liquidation Amount of Outstanding Capital Securities held by the Holders of
record present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of Capital Securities, unless this Issuer Trust
Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights. In respect of any matter as to which a Holder
is entitled to vote, such Holder shall be entitled to one vote for each $25 in
Liquidation Amount of Trust Securities held of record by such Holder.
SECTION 6.5. Proxies, Etc. At any meeting of Holders, any Holder entitled
to vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Property Trustee, or
with such other officer or agent of the Issuer Trust as the Property Trustee may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Holders of record shall be entitled to vote. When Trust Securities
are held jointly by several Persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Holder shall be deemed valid unless challenged
at or prior to its exercise, and the burden of
-31-
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent. Any action which may be
taken by Holders at a meeting may be taken without a meeting and without prior
notice, if Holders holding a majority of the aggregate Liquidation Amount of the
Outstanding Trust Securities entitled to vote in respect of such action (or such
larger proportion thereof as shall be required by any express provision of this
Trust Agreement) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For the purpose of
determining the Holders who are entitled to notice of and to vote at any meeting
or to act 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 or Property Trustee may from time to time fix a date, not more than 90
days prior to the date of any meeting of Holders or the payment of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Holders or Owners may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders or Owners in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to the
Property Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders or Owners signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.1)
conclusive in favor of the Issuer Trustees, if made in the manner provided in
this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness to 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 Issuer Trustee receiving the same deems sufficient.
The ownership of Capital Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the
-32-
Issuer Trustees or the Issuer Trust in reliance thereon, whether or not notation
of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Holders and the Issuer Trustees
with respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such Holder or
Issuer Trustee under this Article VI, then the determination of such matter by
the Property Trustee shall be conclusive with respect to such matter.
SECTION 6.9. Inspection of Records. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Issuer
Trust shall be open to inspection by Holders during normal business hours for
any purpose reasonably related to such Holder's interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Holders that:
(a) the Property Trustee is a national banking association duly
organized and validly existing under the laws of the United States;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a national banking association duly
organized and validly existing under the laws of the United States;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
-33-
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement
have been duly authorized by all necessary corporate or other action on the part
of the Property Trustee and the Delaware Trustee and do not require any approval
of stockholders of the Property Trustee or the Delaware Trustee and such
execution, delivery and performance will not (i) violate the organizational
documents of the Property Trustee or the Delaware Trustee, (ii) violate any
provision of any indenture, mortgage, credit agreement, license or other
agreement or instrument to which the Property Trustee or the Delaware Trustee is
a party or by which it is bound, which violation would materially and adversely
affect the Issuer Trust, the Holders or the ability of the Property Trustee or
the Delaware Trustee to enter into or perform their obligations under the Trust
Agreement, or result in the creation, or imposition of any Lien on any
properties included in the Trust Property, or (iii) violate any law,
governmental rule or regulation of the United States or the State of Delaware,
as the case may be, governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing federal
law governing the banking, trust or general powers of the Property Trustee or
the Delaware Trustee, as the case may be, under the laws of the United States or
the State of Delaware;
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which, in
the good faith judgment of the Property Trustee or the Delaware Trustee, as the
case may be, as amended individually or in the aggregate, would materially and
adversely affect the Issuer Trust or the right, power and authority of the
Property Trustee or the Delaware Trustee, as the case may be, to enter into or
perform its obligations as one of the Issuer Trustees under this Trust
Agreement.
SECTION 7.2. Representations and Warranties of Depositor. The Depositor
hereby represents and warrants for the benefit of the Holders that the Trust
Securities Certificates issued on the Closing Date on behalf of the Issuer Trust
have been duly authorized and will have been, duly and validly executed, issued
and delivered by the Issuer Trustees pursuant to the terms and provisions of,
and in accordance with the requirements of, this Trust Agreement and the Holders
will be, as of each such date, entitled to the benefits of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
-34-
(a) The duties and responsibilities of the Issuer Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require any of the Issuer Trustees to expend or risk their
own funds or otherwise incur any financial liability in the performance of any
of their duties hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity reasonably satisfactory to it against such risk or
liability is not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Issuer Trustees shall
be subject to the provisions of this Article. Nothing in this Trust Agreement
shall be construed to release an Administrative Trustee from liability for its
own negligence, bad faith or willful misconduct with respect to acts or
omissions. To the extent that, at law or in equity, an Issuer Trustee has duties
and liabilities relating thereto to the Issuer Trust or to the Holders, such
Issuer Trustee shall not be liable to the Issuer Trust or to any Holder for such
Issuer Trustee's good faith reliance on the provisions of this Trust Agreement.
The provisions of this Trust Agreement, to the extent that they restrict the
duties and liabilities of the Issuer Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Holders to replace such other duties
and liabilities of the Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each Holder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Issuer Trustees are not
personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) If a Trust Event of Default has occurred and is continuing, the
Property Trustee shall enforce this Trust Agreement for the benefit of the
Holders.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee or the Delaware 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
-35-
the Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Payment Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree 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 3.1 and
except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Depositor
with their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
(e) The Administrative Trustees shall not be responsible for
monitoring the compliance by the other Issuer Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall either
Administrative Trustee be liable for the default or misconduct of any other
Administrative Trustee, the other Issuer Trustees or the Depositor.
SECTION 8.2. Certain Notices. Within 90 days after the occurrence of any
Trust Event of 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 10.8, notice of such Trust Event of Default to the Holders,
the Administrative Trustees and the Depositor, unless such Trust Event of
Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Holders, unless such exercise shall have been revoked.
SECTION 8.3. Certain Rights of Property Trustee. Subject to the provisions
of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be
protected in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the
-36-
provisions of this Trust Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of this Trust Agreement,
then, except as to any matter as to which the Holder of Capital Securities is
entitled to vote under the terms of this Trust Agreement, the Property Trustee
shall deliver a notice to the Depositor requesting the Depositor's direction as
to the course of action to be taken and, if not so directed, the Property
Trustee shall take such action, or refrain from taking such action, as the
Property Trustee shall deem advisable and in the best interests of the Holders,
in which event the Property Trustee shall have no liability except for its own
bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by
an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an Officers'
Certificate as to factual matters (other than the interpretation of this
Agreement) which, upon receipt of such request, shall be promptly delivered by
the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its selection
(which counsel may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees) and the advice of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice; the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this Trust Agreement
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the request
or direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee 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; provided
that, nothing contained in this Section 8.3(g) shall be taken to relieve the
Property Trustee, upon the occurrence of a Trust Event of Default, of its
obligation to exercise the rights and powers vested in it by this Trust
Agreement;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by one or more Holders, but
the
-37-
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys and the Property Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any such
agent or attorney appointed with due care by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders 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 fully protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Trust Agreement;
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors rights generally;
(m) the Property Trustee shall not be charged with knowledge of a
Trust Event of Default unless a Responsible Officer of the Property Trustee
obtains actual knowledge of such event or the Property Trustee receives written
notice of such event from Holders holding more than a majority of Capital
Securities (based upon Liquidation Amount);
(n) in no event shall the Property Trustee be responsible or liable
for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Property Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(o) the rights, privileges, protections, immunities and benefits
given to the Property Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Property Trustee
in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder; and
(p) the Property Trustee may request that the Company deliver a
certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture;
(q) in no event shall the Property Trustee be responsible of liable
for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action;
(r) the rights, privileges, protections, immunities and benefits
given to the Property Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Property Trustee
in each of its capacities hereunder, and each agent, custodian and other Person
employed to act hereunder; and
(s) the Property Trustee may request that the Company deliver a
certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee to perform any act or acts or exercise any
right, power, duty or obligation
-38-
conferred or imposed on it, in any jurisdiction in which it shall be illegal, or
in which any Issuer 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
any Issuer Trustee shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Issuer Trust, and the Issuer Trustees do not
assume any responsibility for their correctness. The Issuer Trustees shall not
be accountable for the use or application by the Depositor of the proceeds of
the Debentures.
SECTION 8.5. May Hold Securities. Any Issuer Trustee or any other agent of
any Issuer Trustee or the Issuer Trust, in its individual or any other capacity,
may become the owner or pledgee of Trust Securities and, subject to Sections 8.8
and 8.13 and except as provided in the definition of the term "Outstanding" in
Article I, may otherwise deal with the Issuer Trust with the same rights it
would have if it were not an Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees. The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such
compensation as shall be agreed in writing for all services rendered by them
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Issuer Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Issuer Trustees in accordance with any
provision of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad faith or
willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Issuer Trustee, (ii) each Paying Agent, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust or its Affiliates (referred to herein as an
"Indemnified Person") from and against any and all loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination of the
Issuer Trust or any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Issuer Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of negligence or,
bad faith with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of any Issuer Trustee.
No Issuer Trustee may claim any Lien on any Trust Property as a result of
any amount due pursuant to this Section 8.6.
-39-
The Depositor and any Issuer Trustee (in the case of the Property Trustee,
subject to Section 8.8 hereof) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Issuer Trust, and the Issuer Trust
and the Holders of Trust Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Issuer Trust, shall not be deemed wrongful or improper. None of
the Depositor or any Issuer Trustee, shall be obligated to present any
particular investment or other opportunity to the Issuer Trust even if such
opportunity is of a character that, if presented to the Issuer Trust, could be
taken by the Issuer Trust, and the Depositor or any Issuer Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Issuer Trustee may engage or be interested in any financial or
other transaction with the Depositor or any Affiliate of the Depositor, or may
act as depository for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer
Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such, and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section and the Trust
Indenture Act, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Trust Agreement.
-40-
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee. Unless a Trust Event of
Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the Property Trustee shall have power to appoint, and upon the written request
of the Property Trustee, the Depositor and the Administrative Trustees shall for
such purpose join in the execution, delivery, and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent required by
law to act as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
Any co-trustee or separate trustee appointed pursuant to this Section shall
either be (i) a natural person who is at least 21 years of age and a resident of
the United States or (ii) a legal entity with its 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:
(a) The Trust Securities shall be executed by at least one
Administrative Trustee the Common Securities shall be delivered by an
Administrative Trustee, and the Capital Securities shall be delivered by the
Property Trustee and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Issuer Trustees specified
hereunder shall be exercised solely by such Issuer Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any
-41-
co-trustee or separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the Property Trustee
shall have power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigning or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant Trustee")
and no appointment of a successor Issuer Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Issuer
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, a Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Issuer Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Issuer Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by Act of the Holder of the Common
Securities. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or Delaware Trustee, or both of them, may be
removed at such time by Act of the Holders of a majority in Liquidation Amount
of the Capital Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may be removed
by the Holder of the Common Securities at any time. In no event will the Holders
of the Capital Securities have a right to vote to appoint, remove or replace the
Administrative Trustees.
If any Issuer Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any reason, at a time when no Debenture Event of Default
shall have occurred and be continuing, the Holder of the Common Securities, by
Act, shall promptly appoint a successor Issuer Trustee or Issuer Trustees, and
the retiring Issuer Trustee shall comply with the applicable requirements of
Section 8.11, except that a successor Administrative Trustee need not comply
with Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of
-42-
continuing to act as the Property Trustee or the Delaware Trustee, as the case
may be, at a time when a Debenture Event of Default shall have occurred and be
continuing, the Holders of the Capital Securities, by Act of the Holders of a
majority in Liquidation Amount of the Capital Securities then Outstanding shall
promptly appoint a successor Relevant Trustee or Trustees, and such successor
Trustee shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default shall have
occurred and be continuing, the Holder of the Common Securities, by Act, shall
promptly appoint a successor Administrative Trustee or Trustees. If no successor
Relevant Trustee shall have been so appointed by the Holder of the Common
Securities or the Holders of the Capital Securities and accepted appointment in
the manner required by Section 8.11 if applicable, any Holder who has been a
Holder of Trust Securities for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Relevant Trustee.
The Property Trustee shall, at the expense of the Issuer Trust, give
notice of each resignation and each removal of an Issuer Trustee and each
appointment of a successor Issuer Trustee to all Holders in the manner provided
in Section 10.8 and shall give notice to the Depositor. Each notice shall
include the name of the successor Relevant Trustee and the address of its
Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee who is a natural person dies
or becomes, in the opinion of the Holder of Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by appointment by the remaining Administrative Trustees.
SECTION 8.11. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, other than the
appointment of a successor Administrative Trustee pursuant to Section 8.19(a),
the retiring Relevant Trustee (if requested by the Depositor) and each successor
Relevant Trustee with respect to the Trust Securities shall execute and deliver
an amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Issuer Trust and (b) shall
add to or change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the Issuer Trust by
more than one Relevant Trustee, it being understood that nothing herein or in
such amendment shall constitute such Relevant Trustees co-trustees and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Issuer Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall, upon payment of
all amounts owed it hereunder, duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Issuer Trust.
-43-
Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Relevant Trustee shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or the
Issuer Trust. If and when the Property Trustee shall be or become a creditor of
the Depositor or the Issuer Trust (or any other obligor upon the Capital
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Issuer Trust or any other obligor
upon the Trust Securities or the property of the Issuer Trust or of such other
obligor or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the
-44-
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.14. Reports by Property Trustee.
(a) Not later than 60 days after May 15 of each year commencing with
May 15, 2007, the Property Trustee shall transmit to all Holders in accordance
with Section 10.8, and to the Depositor, a brief report dated as of the
immediately preceding March 31, with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) its knowledge of such Property Trustee's compliance with
all conditions and covenants under this Agreement; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action taken
by the Property Trustee in the performance of its duties hereunder which
it has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq Global Select Market or such other interdealer
quotation system or self-regulatory organization upon which the Trust Securities
are listed or traded, with the Commission and with the Depositor. The Depositor
will promptly notify the Property Trustee in writing when the Trust Securities
are listed or delisted on any such exchange or system.
SECTION 8.15. Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Issuer Trust shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any) and the compliance certificate required
by Section 314(a) of the Trust Indenture Act in the form, in the manner and at
the times required by Section 314 of the Trust Indenture Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Issuer Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided
-45-
for in this Trust Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) or Section 314(e) of the
Trust Indenture Act shall be given in the form of an Officers' Certificate.
SECTION 8.17. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be four. The Property
Trustee and the Delaware Trustee may be the same Person.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to dissolve, terminate or annul the Issuer Trust.
SECTION 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Issuer
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of this Trust
Agreement, as set forth herein.
SECTION 8.19. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be Xxxxxx Xxxxxx, an
individual, and Xxxxxx X. Xxxxxxxxx, an individual, and their successors shall
be appointed by the Holder of the Common Securities and may be removed by the
Holder of the Common Securities at any time. Each Administrative Trustee shall
sign an agreement agreeing to comply with the terms of this Trust Agreement. If
at any time there is no Administrative Trustee, the Property Trustee or any
Holder who has been a Holder of Trust Securities for at least six months may
petition any court of competent jurisdiction for the appointment of one or more
Administrative Trustee.
(b) Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with this Section 8.19, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
-46-
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee who is a natural person dies
or becomes, in the opinion of the Holder of Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the unanimous act of the remaining Administrative Trustees if there
were at least two of them prior to such vacancy (with the successor in each case
being a Person who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 8.7).
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date. Unless earlier dissolved,
the Issuer Trust shall automatically dissolve on [*] (the "Expiration Date").
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event," upon the occurrence of which the Issuer Trust shall dissolve:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Holder of the Common Securities;
(b) subject to obtaining any required regulatory approval, the
written direction to the Property Trustee from the Holder of the Common
Securities at any time to dissolve the Issuer Trust and, after satisfaction of
liabilities to creditors of the Issuer Trust as provided by applicable law,
distribute Debentures to Holders in exchange for the Capital Securities;
(c) the redemption of all of the Capital Securities in connection
with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
SECTION 9.3. Termination. The respective obligations and responsibilities
of the Issuer Trustees and the Issuer Trust created and continued hereby shall
terminate upon the latest to occur of the following: (a) the distribution by the
Property Trustee to Holders upon the liquidation of the Issuer Trust pursuant to
Section 9.4, or upon the redemption of all of the Trust Securities pursuant to
Section 4.2, of all amounts required to be distributed hereunder upon the final
payment of the Trust Securities; (b) the payment of any expenses owed by the
Issuer Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Issuer Trust or the Holders.
SECTION 9.4. Liquidation.
-47-
(a) If an Early Termination Event specified in clause (a), (b) or
(d) of Section 9.2 occurs, or upon the Expiration Date, the Issuer Trust shall
be liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Debentures, subject to Section 9.4(d). Notice of liquidation
shall be prepared by an Administrative Trustee and shall be given by the
Property Trustee by first-class mail, postage prepaid mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Property Trustee (after consultation with the
Administrative Trustees) shall deem appropriate.
(b) Unless Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Issuer Trust and the distribution of Debentures to Holders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Unless Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
exchange agent for exchange, (iii) the Depositor shall use its best efforts to
have the Debentures listed on the New York Stock Exchange or on such other
exchange, interdealer quotation system or self-regulatory organization as the
Capital Securities are then listed, (iv) any Trust Securities Certificates not
so surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Trust Securities Certificates with respect to such
Debentures) and (v) all rights of Holders holding Trust Securities will cease,
except the right of such Holders to receive Debentures upon surrender of Trust
Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, then the Trust
Property shall be liquidated, and the Issuer Trust shall
-48-
be wound-up by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution of the Issuer Trust,
Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, an amount equal to
the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such winding up, the Liquidation Distribution can
be paid only in part because the Issuer Trust has insufficient assets available
to pay in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Issuer Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holders of the Common Securities will be entitled to receive Liquidation
Distributions upon any such winding-up pro rata (determined as aforesaid) with
Holders of Capital Securities, except that, if a Debenture Event of Default
specified in Section 5.1(a)(1), 5.1(b)(2) or 5.1(b)(3) of the Indenture has
occurred and is continuing, the Capital Securities shall have a priority over
the Common Securities as provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Issuer Trust. The Issuer Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any entity, except pursuant to this
Article Nine. At the request of the Holder of the Common Securities and with the
consent of the Holders of a majority (based on Liquidation Amounts) of the
Capital Securities, the Issuer Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Issuer Trust with respect to the Capital
Securities or (b) substitutes for the Capital Securities other securities having
substantially the same terms as the Capital Securities ("Successor Securities")
so long as the Successor Securities rank the same as the Capital Securities rank
in priority with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is appointed as the holder of the
Debentures, (iii) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Capital Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holder of the Capital Securities (including
any Successor Securities) in any material respect, (v) such successor entity has
a purpose substantially identical to that of the Issuer Trust, (vi) prior to
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Issuer Trust has received an Opinion of Counsel to the effect that
(a) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges of the
Holders of the Capital Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an investment company under the
1940 Act and (vii) the Depositor owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Issuer Trust shall not, except with the
consent of Holders of all Outstanding Capital Securities, consolidate,
-49-
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 Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Issuer Trust or the successor Person to be
classified as an association taxable as a corporation or as other than a grantor
trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders. The death or incapacity, or
the dissolution, liquidation, termination, or the bankruptcy of any Person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor dissolve, terminate or annul the
Trust, nor entitle the legal representatives, successors or heirs of such Person
or any Holder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time without
the consent of any Holder of the Capital Securities, (i) by the Holder of the
Common Securities to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, (ii) by the Holder of the Common Securities to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Issuer Trust will not be classified for
United States federal income tax purposes as an association taxable as a
corporation or as other than a grantor trust at any times that any Trust
Securities are outstanding or to ensure that the Issuer Trust will not be
required to register as an investment company under the 1940 Act, or (iii) by a
Relevant Trustee pursuant to Section 8.11; provided, however, that such action
shall not adversely affect in any material respect the interests of any Holder,
and any such amendments of this Trust Agreement shall become effective when
notice thereof is given to the Holders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Holder of the Common Securities with
(i) the consent of Holders of at least a majority in aggregate Liquidation
Amount of the Outstanding Trust Securities and (ii) receipt by the Issuer
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Issuer Trustees in accordance with such
amendment will not affect the Issuer Trust's status as a grantor trust or cause
the Issuer Trust to be an association taxable as a corporation for United States
federal income tax purposes or the Issuer Trust's exemption from status of an
investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each Holder, this Trust Agreement may
not be amended to (i)
-50-
change the amount or timing of any Distribution or otherwise adversely affect
the amount of any Distribution required to be made as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date; notwithstanding any other provision herein,
without the unanimous consent of the Holders, this paragraph (c) of this Section
10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Issuer Trust to be classified as an association
taxable as a corporation or not to be a grantor trust for United States federal
income tax purposes or to fail or cease to qualify for the exemption from status
of an investment company under the 1940 Act.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation or liability on the
Depositor.
(f) If any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) No amendment to this Trust Agreement that affects the Property
Trustee's or the Delaware Trustee's rights, duties or immunities under this
Trust Agreement or would otherwise expose the Property Trustee to any liability
or be contrary to applicable law shall be adopted unless the prior written
consent to such amendment be received by the Depositor from the Property Trustee
or the Delaware Trustee, as the case may be. The Property Trustee shall receive
an Opinion of Counsel and an Officers' Certificate stating that any amendment to
this Trust Agreement is in compliance with this Trust Agreement.
SECTION 10.3. Separability. If any provision in this Trust Agreement or in
the Trust Securities Certificates shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 10.4. Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE HOLDERS, THE ISSUER TRUST AND THE ISSUER TRUSTEES
WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
THE PROVISIONS OF SECTION 3540 AND SECTION 3561 OF TITLE 12 OF THE
DELAWARE CODE SHALL NOT APPLY TO THIS ISSUER TRUST.
SECTION 10.5. Payments Due on Non-Business Day. If the date fixed for any
payment on any Trust Security shall be a day that is not a Business Day, then
such payment need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise provided in Sections
4.1(a) and 4.2(d)), with the same force and effect as though made on the date
fixed for such payment, and no interest shall accrue thereon for the period
after such date.
-51-
SECTION 10.6. Successors. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Issuer Trust
or the Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eight of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.7. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands. Any report, notice, demand or
other communication which by any provision of this Trust Agreement is required
or permitted to be given or served to or upon any Holder or the Depositor may be
given or served in writing by deposit thereof, first-class postage prepaid, in
the United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Holder of Capital Securities, to such Holder as
such Holder's name and address may appear on the Securities Register; and (b) in
the case of the Holder of the Common Securities or the Depositor, to Citizens
Banking Corporation, 000 X. Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention:
General Counsel, facsimile no.: (000) 000-0000. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been sufficiently
given or made, for all purposes, upon hand delivery, mailing or transmission.
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
Issuer Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Issuer Trust) as follows: (a) with respect to the Property Trustee to
U.S. Bank National Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000,
Attention: Corporate Trust Services; (b) with respect to the Delaware Trustee,
to U.S. Bank Trust National Association, 000 Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxxx, XX 00000, Attention: Corporate Trust Administration; and (c) with
respect to the Administrative Trustees, to them at the address above for notices
to the Depositor, marked "Attention Administrative Trustees of Citizens Funding
Trust I." Such notice, demand or other communication to or upon the Issuer Trust
or the Property Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Issuer Trust or the Property
Trustee.
SECTION 10.9. Agreement Not to Petition. To the fullest extent permitted
by applicable law, each of the Issuer Trustees and the Depositor agree for the
benefit of the Holders that, until at least one year and one day after the
Issuer Trust has been terminated in accordance with Article Nine, they shall not
file, or join in the filing of, a petition against the Issuer Trust under any
bankruptcy, insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy Laws")
or otherwise join in the commencement of any proceeding against the Issuer Trust
under any Bankruptcy Law. In the event the Depositor takes action in violation
of this Section 10.9, the Property Trustee agrees, for the benefit of Holders,
that at the expense of the Depositor, it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such petition by
the Depositor against the Issuer Trust or the commencement of such action and
raise the defense that the Depositor has agreed in writing not to take such
action and should be stopped and precluded
-52-
therefrom and such other defenses, if any, as counsel for the Issuer Trustees or
the Issuer Trust may assert. The provisions of this Section 10.9 shall survive
the termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Issuer Trustee which is
deemed a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or excluded, as the case may be.
(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
Issuer Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH
HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT
SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH
HOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts. This instrument may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
SECTION 10.13. Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 10.14. Force Majeure. In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of god, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it
being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
[The remainder of this page intentionally left blank; signature
page follows.]
-53-
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Trust Agreement as of the date first above written.
CITIZENS BANKING CORPORATION,
as Depositor
By: __________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
Property Trustee
By: __________________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Delaware Trustee
By: __________________________________
Name:
Title:
By:
__________________________________
Xxxxxx Xxxxxx
as Administrative Trustee
By:
__________________________________
Xxxxxx X. Xxxxxxxxx
as Administrative Trustee
-54-
EXHIBIT A
CERTIFICATE OF TRUST
OF
CITIZENS FUNDING TRUST I
This Certificate of Trust of Citizens Funding Trust I (the "Trust"), dated
as of September [*], 2006, is being duly executed and filed by the undersigned,
as trustees, to form a statutory trust under the Delaware Statutory Trust Act
(12 Del. C. Section 3801, et seq .) (the "Act"). The undersigned hereby certify
aS follows:
1. Name. The name of the statutory trust being formed hereby is Citizens
Funding Trust I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware is as follows:
U.S. Bank Trust National Association
000 Xxxx Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Corporate Trust Administration
3. Effective Date. This Certificate of Trust shall be effective as of its
filing with the Secretary of State of the State of Delaware.
A-1
IN WITNESS WHEREOF, the undersigned have duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act as of the date first
above written.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Delaware Trustee
By: __________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, as
Property Trustee
By: __________________________________
Name:
Title:
By:
__________________________________
Xxxxxx X. Xxxxxxxxx, as Administrative
Trustee
By:
__________________________________
Xxxxxx Xxxxxx, as Administrative Trustee
A-2
EXHIBIT B
STANDARD FORM
DTC LETTER OF REPRESENTATIONS
B-1
EXHIBIT C
[Form of Common Securities Certificate]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE
WITH SECTION 5.11 OF THE TRUST AGREEMENT
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
CITIZENS FUNDING TRUST I
[__]% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
Citizens Funding Trust I, a statutory trust created under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that Citizens Banking
Corporation, a Michigan corporation (the "Holder"), is the registered holder of
_______________________(________) common securities of the Issuer Trust,
representing undivided beneficial interests in the assets of the Issuer Trust
and designated the [__]% Common Securities (Liquidation Amount $25 per Common
Security) (the "Common Securities"). Except as provided in Section 5.11 of the
Trust Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof shall be null and void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of September [*], 2006, 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 Issuer Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written request to the
Issuer Trust at its principal place of business.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER AGREES TO BE
BOUND BY THE TRUST AGREEMENT AND IS ENTITLED TO THE BENEFITS THEREUNDER.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
IN WITNESS WHEREOF, the undersigned Administrative Trustee of the Issuer
Trust has executed this certificate as of the ________ day of ________________,
_____.
CITIZENS FUNDING TRUST I
By: _____________________________
Name: ___________________________
as Administrative Trustee
C-1
EXHIBIT D
[FORM OF CAPITAL SECURITIES CERTIFICATE]
[NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A "PLAN"), NO
ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN,
UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE
UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE")
96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (A) IT IS NOT A
PLAN AND NO PART OF THE ASSETS TO BE USED BY IT TO PURCHASE AND/OR HOLD SUCH
CAPITAL SECURITIES OR ANY INTEREST THEREIN CONSTITUTES "PLAN ASSETS" OF ANY PLAN
OR (B) IT IS ITSELF A PLAN, OR IS PURCHASING OR HOLDING THE CAPITAL SECURITIES
OR AN INTEREST THEREIN ON BEHALF OF OR WITH "PLAN ASSETS" OF ONE OR MORE PLANS,
AND EACH SUCH PURCHASE AND HOLDING OF SUCH SECURITIES EITHER (I) SATISFIES THE
REQUIREMENTS OF, AND IS ENTITLED TO FULL EXEMPTIVE RELIEF UNDER, PTCE 96-23,
95-60, 91-38, 90-1 OR 84-14 (OR SOME OTHER APPLICABLE CLASS OR INDIVIDUAL
EXEMPTION) (OR, IN THE CASE OF A NON-ERISA PLAN, A SIMILAR EXEMPTION APPLICABLE
TO THE TRANSACTION) OR (II) WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
ERISA OR THE CODE OR ITS EQUIVALENT UNDER APPLICABLE SIMILAR LAWS.]
[IF THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITIES CERTIFICATE, THEN
INSERT -- This Capital Security is a Global Capital Securities Certificate
within the meaning of the Trust Agreement hereinafter referred to and is
registered in the name of a clearing agency or a nominee thereof. This Capital
Security may not be exchanged in whole or in part for a Capital Security
registered, and no transfer of this Capital Security in whole or in part may be
registered, in the name of any person other than such clearing agency or a
nominee thereof, except in the limited circumstances described in the Trust
Agreement.]
[If the Security is a Global Capital Security and The Depository Trust
Company is to be the Clearing Agency therefor, then insert -- Unless this
Capital Security is presented by an authorized representative of The Depository
Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx) to Citizens Funding Trust I or its
agent for registration of transfer, exchange or payment, and any Capital
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
D-1
CERTIFICATE NUMBER NUMBER OF CAPITAL SECURITIES
P- [___________]
CUSIP NO. _______________
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
CITIZENS FUNDING TRUST I
[__]% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $25 PER CAPITAL SECURITY)
Citizens Funding Trust I, a statutory trust created under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of ________ (________) capital securities of
the Issuer Trust representing an undivided preferred beneficial interest in the
assets of the Issuer Trust and designated the Citizens Funding Trust I [__]%
Capital Securities (Liquidation Amount $25 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the books and records
of the Issuer Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer as provided in
Section 5.5 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of September [__], 2006, as the same may be amended from
time to time (the "Trust Agreement"), including the designation of the terms of
Capital Securities as set forth therein. The Holder is entitled to the benefits
of the Guarantee Agreement entered into by Citizens Banking Corporation, a
Michigan corporation, and U.S. Bank National Association, as guarantee trustee,
dated as of September [__], 2006, as amended from time to time (the
"Guarantee"), to the extent provided therein. The Issuer Trust will furnish a
copy of the Trust Agreement and the Guarantee to the Holder without charge upon
written request to the Issuer Trust at its principal place of business or
registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER AGREES TO BE
BOUND BY THE TRUST AGREEMENT AND IS ENTITLED TO THE BENEFITS THEREUNDER.
D-2
IN WITNESS WHEREOF, the undersigned Administrative Trustee of the Issuer
Trust has executed this certificate as of the __________ day of
___________,________.
CITIZENS FUNDING TRUST I
By: ________________________________
Name: ______________________________
as Administrative Trustee
This is one of the Capital Securities
referred to in the mentioned Trust
Agreement.
AUTHENTICATED BY:
U.S. BANK NATIONAL ASSOCIATION,
as Authenticating Agent
or
By ________________________________
[As Authenticating Agent]
By ________________________________
[Authorized Officer]
D-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints ______________________________________________
agent to transfer this Capital Securities Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ____________________________
Signature: _______________________
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
D-4
