AMENDED AND RESTATED
TRUST AGREEMENT
among
THE SOUTH FINANCIAL GROUP, INC., as Sponsor,
[THE SOUTH FINANCIAL GROUP, INC.] [TSFG CAPITAL [ ] LLC], as Depositor,
, as Property Trustee,
_____________________, as Delaware Trustee,
the Administrative Trustees (as named herein),
and the several Holders of the Trust Securities
Dated as of
of
TSFG CAPITAL TRUST [ ]
THE SOUTH FINANCIAL GROUP, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Amended and Restated Trust Agreement dated as of ____________ , 2004
Trust Indenture Trust Agreement Section
Act Section
ss. 310(a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(a)(5) 8.7(a)
(b) 8.8
(c) Not applicable
ss. 311(a) 8.13
(b) 8.13
ss. 312(a) 5.7(a)
(b) 5.7(b)
(c) 5.7(c)
ss. 313(a) 8.15(a), 8.15(b)
(b) 8.15(b)
(c) 8.15(b)
(d) 8.15(c)
ss. 314(a) 8.16
(b) Not applicable
(c)(1) 8.17
(c)(2) 8.17
(c)(3) Not applicable
(d) Not applicable
(e) 1.1,8.17
ss. 315(a) 8.1(e)(i)
(b) 8.2
(c) 8.1(d)
(d) 8.1(e)
(e) Not applicable
ss. 316(a)(1)(A) Not applicable
(a)(1)(B) 5.14(d)
(a)(2) Not applicable
(b) 5.14(d)
(c) 6.7
ss. 317(a)(1) 8.1(c)
(a)(2) 8.14
(b) 5.9
ss. 318(a) 10.10
(b) 10.10
(c) 10.10
Note: This reconciliation and tie shall not, for any purpose be deemed to be
part of the Amended and Restated Trust Agreement.
i
Table of Contents
Page
ARTICLE I DEFINED TERMS 1
SECTION 1.1 Definitions 1
ARTICLE II CONTINUATION OF THE ISSUER TRUST 7
SECTION 2.1 Name 7
SECTION 2.2 Office of the Delaware Trustee; Principal Place of Business 7
SECTION 2.3 Initial Contribution of Trust Property; Organizational Expenses 7
SECTION 2.4 Issuance of the Preferred Securities 8
SECTION 2.5 Issuance of the Common Securities; Subscription and Purchase Debentures 8
SECTION 2.6 Declaration of Trust 8
SECTION 2.7 Authorization to Enter into Certain Transactions 8
SECTION 2.8 Assets of Trust 11
SECTION 2.9 Title to Trust Property 11
ARTICLE III PAYMENT ACCOUNT 11
SECTION 3.1 Payment Account 11
ARTICLE IV DISTRIBUTIONS; REDEMPTION 11
SECTION 4.1 Distributions 11
SECTION 4.2 Redemption 12
SECTION 4.3 Subordination of Common Securities 14
SECTION 4.4 Payment Procedures 14
SECTION 4.5 Tax Returns and Reports 14
SECTION 4.6 Payment of Expenses of the Issuer Trust 14
SECTION 4.7 Payments under Indenture or Pursuant to Direct Actions 15
ARTICLE V TRUST SECURITIES CERTIFICATES 15
SECTION 5.1 Initial Ownership 15
SECTION 5.2 The Trust Securities Certificates 15
SECTION 5.3 Execution and Delivery of Trust Securities Certificates 15
SECTION 5.4 Registration of Transfer and Exchange of Preferred Securities Certificates 15
SECTION 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates 16
SECTION 5.6 Persons Deemed Holders 16
SECTION 5.7 Lists of Holders; Access to List of Holders' Names and Addresses 16
SECTION 5.8 Maintenance of Office Agency 17
SECTION 5.9 Appointment of Paying Agent 17
SECTION 5.10 Ownership of Common Securities by Sponsor 17
SECTION 5.11 Book-Entry Preferred Securities Certificates; Common Securities Certificate 17
SECTION 5.12 Notices to Clearing Agency 18
SECTION 5.13 Definitive Preferred Securities Certificates 18
SECTION 5.14 Rights of Holders; Waivers of Past Defaults 19
SECTION 5.15 CUSIP Numbers 20
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING 20
SECTION 6.1 Limitations on Voting Rights 20
SECTION 6.2 Notice of Meetings 21
SECTION 6.3 Meetings of Holders of the Preferred Securities 21
SECTION 6.4 Voting Rights 22
SECTION 6.5 Proxies, etc. 22
SECTION 6.6 Holder Action by Written Consent 22
SECTION 6.7 Record Date for Voting and Other Purposes 22
SECTION 6.8 Acts of Holders. 22
SECTION 6.9 Inspection of Records 23
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ARTICLE VII REPRESENTATIONS AND WARRANTIES 23
SECTION 7.1 Representations and Warranties of the Property Trustee and the Delaware Trustee 23
SECTION 7.2 Representations and Warranties of Depositor 24
ARTICLE VIII THE ISSUER TRUSTEES 24
SECTION 8.1 Certain Duties and Responsibilities 24
SECTION 8.2 Certain Notices 26
SECTION 8.3 Certain Rights of Property Trustee 26
SECTION 8.4 Not Responsible for Recitals or Issuance of Securities 27
SECTION 8.5 May Hold Securities 28
SECTION 8.6 Compensation; Indemnity; Fees 28
Corporate Property Trustee Required; Eligibility of Issuer Trustees and
SECTION 8.7 Administrative Trustees 28
SECTION 8.8 Conflicting Interests 29
SECTION 8.9 Co-Trustees and Separate Trustee 29
SECTION 8.10 Resignation and Removal; Appointment of Successor 30
SECTION 8.11 Acceptance of Appointment by Successor 31
SECTION 8.12 Merger, Conversion, Consolidation or Succession to Business 31
SECTION 8.13 Preferential Collection of Claims Against Depositor or Issuer Trust 32
SECTION 8.14 Trustee May File Proofs of Claim 32
SECTION 8.15 Reports by Property Trustee 32
SECTION 8.16 Reports to the Property Trustee and Holders 33
SECTION 8.17 Evidence of Compliance with Conditions Precedent 33
SECTION 8.18 Number of Issuer Trustees 33
SECTION 8.19 Delegation of Power 33
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER 33
SECTION 9.1 Dissolution Upon Expiration Date 33
SECTION 9.2 Early Dissolution 33
SECTION 9.3 Dissolution 34
SECTION 9.4 Liquidation 34
SECTION 9.5 Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust 35
ARTICLE X MISCELLANEOUS PROVISIONS 36
SECTION 10.1 Limitation of Rights of Holders 36
SECTION 10.2 Amendment 36
SECTION 10.3 Separability 37
SECTION 10.4 Governing Law 37
SECTION 10.5 Payments Due on Non-Business Day 37
SECTION 10.6 Successors 37
SECTION 10.7 Headings 38
SECTION 10.8 Reports, Notices and Demands 38
SECTION 10.9 Agreement Not to Petition 38
SECTION 10.10 Trust Indenture Act; Conflict with Trust Indenture Act 39
SECTION 10.11 Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture 39
SECTION 10.12 Counterparts 39
EXHIBITS:
A-1
Exhibit A - Certificate of Trust
B-1
Exhibit B - Form of Common Securities Certificate
C-1
Exhibit C - Form of Preferred Securities Certificate
iii
AMENDED AND RESTATED TRUST AGREEMENT, dated as of among (i) The South
Financial Group, Inc., a South Carolina corporation (including any successors or
assigns, the "Sponsor"), (ii) [The South Financial Group, Inc., a South Carolina
corporation] [TSFG Capital [ ] LLC, a Delaware limited liability company]
(including any successors or assigns, the "Depositor"), (iii) , a , as property
trustee (in such capacity, the "Property Trustee"), (iv) _____________________,
a Delaware banking corporation, as Delaware trustee (in such capacity, the
"Delaware Trustee"), (v) , an individual, and __________________ , an
individual, each of whose address is c/o The South Financial Group, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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 (vi) the several Holders, as
hereinafter defined.
WITNESSETH
WHEREAS, the Sponsor and certain of the Issuer Trustees have heretofore
duly declared and established a statutory trust (the "Issuer Trust") pursuant to
the Delaware Statutory Trust Act (as hereinafter defined) by entering into that
certain Trust Agreement, dated as of (the "Original Trust Agreement"), and by
the execution and filing with the Secretary of State of the State of Delaware
the Certificate of Trust, filed on , attached as Exhibit A; and
WHEREAS, the Sponsor, the Depositor and the Issuer Trustees desire to
amend and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Issuer Trust to the Depositor, (ii) the issuance and sale of
the Preferred Securities by the Issuer Trust pursuant to the Underwriting
Agreement, and (iii) the acquisition by the Issuer Trust from the Depositor of
all of the right, title and interest in the Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are 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:
The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
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;
The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation";
All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted accounting
principles;
Unless the context otherwise requires, any reference to an "Article," a
"Section" or an "Exhibit" refers to an Article, a Section or an Exhibit, as the
case may be, of or to this Trust Agreement; and
The words "hereby," "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
1
"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.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in such
individual's capacity as Administrative Trustee of the trust heretofore formed
and continued hereunder and not in such individual's individual capacity, or
such Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. 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.
"Authorized Officer" of any Person means any executive officer of such
Person or any Person authorized by or pursuant to a resolution of the Board of
Directors of such Person.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of its property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated
a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any substantial
part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due and its willingness to be
adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" of any Person means the board of directors (or
equivalent body) of such Person, or, in the case of a limited liability company
issuer of Debentures, the sole member, or a committee designated by the board of
directors (or equivalent body) of such Person (or any such committee), comprised
of one or more members of the board of directors (or equivalent body) of such
Person or officers of such Person, or both.
"Book-Entry Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Book-Entry Preferred Securities.
"Book-Entry Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.11.
"Business Day" means a day other than a Saturday, a Sunday, or any other
day on which banking institutions in New York, New York or Wilmington, Delaware
are authorized or required by law or executive order to remain closed.
"Certificate Depository Agreement" means the agreement among the Issuer
Trust, the Paying Agent and DTC, as the initial Clearing Agency, dated as of the
Closing Date.
"Certificate of Trust" has the meaning specified in the recitals hereof,
as amended from time to time.
2
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Time of Delivery, which date is also the date of
execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $[ ] and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located at , and (ii) when
used with respect to the Debenture Trustee, the principal office of the
Debenture Trustee located at .
"Debenture Event of Default" means any "Event of Default" specified in
Section [501] [601] of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption of such Debentures
under the Indenture.
"Debenture Trustee" means , a , solely in its capacity as trustee pursuant
to the Indenture and not in its individual capacity, or its successor in
interest in such capacity, or any successor trustee appointed as provided in the
Indenture.
"Debentures" means the $________________________ initial aggregate
principal amount of the Depositor's debt securities issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (i) Preferred Securities Certificates issued as
Book-Entry Preferred Securities Certificates as provided in Section 5.11, and
(ii) Preferred Securities Certificates issued in certificated, fully registered
form as provided in Section 5.13.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801 et seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee"
in the preamble to this Trust Agreement, solely in its capacity as Delaware
Trustee of the trust heretofore formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a)(i).
"Distribution Period" means the period of time beginning on any
Distribution Date and ending on the day immediately preceding the next
succeeding Distribution Date.
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.1.
3
"DTC" means The Depository Trust Company.
"Early Dissolution Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in this Trust Agreement
(other than those specified in clause (b) or (c) above) and continuation
of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Issuer Trustees and to the
Sponsor and the Depositor by the Holders of at least 25% in aggregate
Liquidation Amount of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not been appointed
within 90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any
successor statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Trust Agreement the Federal Reserve is not existing and performing the
duties now assigned to it, then the body performing such duties at such time.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Sponsor and , as guarantee trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the holders of the
Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
are registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Statutory Trust Act.
"Indenture" means ______________________.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Issuer Trust" means the Delaware statutory trust known as "TSFG Capital
Trust [ ]" which was created on ___________________________ under the Delaware
Statutory Trust Act pursuant to the Original Trust Agreement and the filing of
the Certificate of Trust, and continued pursuant to this Trust Agreement.
"Issuer Trustees" has the meaning specified 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 any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption Price of
4
such Trust Securities, (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Issuer Trust, Debentures having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Debentures are
distributed, and (c) with respect to any distribution of Additional Amounts to
Holders of Trust Securities, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities in respect of which such distribution
is made.
"Liquidation Amount" means the stated amount of $[ ] per Trust Security.
"Liquidation Date" means the date of the dissolution, winding-up or
dissolution of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or "Majority
in Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Preferred Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Preferred Securities or Common Securities, as the case may be.
["Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.]
"Officers' Certificate" means, with respect to any Person, a certificate
signed by any two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Sponsor or any Affiliate of the Sponsor.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent; provided that, if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 5.4, 5.5 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Sponsor, the Depositor, any Issuer Trustee, or
any Affiliate of the Sponsor, the Depositor or any Issuer Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in determining
5
whether any Issuer Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Preferred
Securities that such Issuer Trustee 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 Preferred Securities are owned by the Sponsor, the Depositor, one or
more of the Issuer Trustees, and/or any such Affiliate. Preferred 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 Preferred 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
Preferred Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 and shall initially be ________________.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with ____________________ in its
trust department for the benefit of the Holders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Holders in accordance with
Sections 4.1 and 4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
C.
"Preferred Security" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $[ ] and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the Person identified as the "Property Trustee"
in the preamble to this Trust Agreement, solely in its capacity as Property
Trustee of the trust heretofore formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"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.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Responsible Officer" means, with respect to any Issuer Trustee, the
President, any Senior Vice President, any Vice President, any Assistant Vice
President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer, any Trust Officer or Assistant Trust Officer of such Issuer Trustee.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
["Special Distribution" has the meaning specified in the Indenture.]
"Sponsor" has the meaning specified in the preamble to this Trust
Agreement.
6
["S&P" means Standard & Poor's Rating Service, a division of the McGraw
Hill Companies, and its successors.]
"Time of Delivery" means _______________________.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits, and (ii) for all purposes of this
Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that 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 Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
______________, among the Issuer Trust, the Depositor and _____________, as
representatives of the underwriters named therein.
"Vice President," when used with respect to the Sponsor or the Depositor,
means any duly appointed vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1 Name.
The trust continued hereby shall be known as "TSFG Capital Trust [ ]," as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders and the other Issuer Trustees, in which
name the Administrative Trustees and the other Issuer Trustees may conduct the
business of the Issuer Trust, make and execute contracts and other instruments
on behalf of the Issuer Trust and ▇▇▇ and be sued on behalf of the Issuer Trust.
SECTION 2.2 Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is
__________________________________, Attention: ________________________________,
or such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Sponsor, the Depositor, the Property Trustee
and the Administrative Trustees. The principal executive office of the Issuer
Trust is c/o The South Financial Group, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.3 Initial Contribution of Trust Property; Organizational
Expenses.
The Issuer Trustees acknowledge receipt from the Sponsor in connection
with the Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Sponsor 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. Neither the Sponsor nor the Depositor shall make any claim upon the
Trust Property for the payment of such expenses.
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SECTION 2.4 Issuance of the Preferred Securities.
On _____________________, the Sponsor, on behalf of the Issuer Trust, and
the Depositor 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 Section 5.3 and deliver to the Underwriters named in the
Underwriting Agreement a Preferred Securities Certificate, registered in the
name of the nominee of the initial Clearing Agency, in an aggregate amount of
________________________ Preferred Securities having an aggregate Liquidation
Amount of $_______________________, against payment of the purchase price
therefor in immediately available funds, which funds such Administrative Trustee
shall promptly deliver to 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 Section 5.3 and deliver to the Sponsor Common Securities
Certificates, registered in the name of the Sponsor, in an aggregate amount of
_____________ Common Securities having an aggregate Liquidation Amount of $_____
against payment by the Sponsor of the purchase price therefor in immediately
available funds, which amount such Administrative Trustee shall promptly deliver
to the Property Trustee. Contemporaneously therewith, an Administrative Trustee,
on behalf the Issuer Trust, shall subscribe to and purchase from the Depositor
the Debentures registered in the name of the Issuer Trust and having an
aggregate principal amount equal to $_____ and shall deliver to the Depositor
the purchase price therefor (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the
first sentence of this Section 2.5).
SECTION 2.6 Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to issue
and sell Trust Securities, (b) to use the proceeds from such sale to acquire the
Debentures, and (c) to engage in 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 upon and subject to
the conditions set forth herein for the benefit of the Issuer Trust and the
Holders. The Administrative Trustees shall have all rights, powers and duties
set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Issuer Trust. The Delaware Trustee shall not
be entitled to exercise any powers, nor shall the Delaware Trustee have any of
the duties and responsibilities of the Property Trustee or the Administrative
Trustees, or any of the duties and responsibilities of the Issuer Trustees
generally, set forth herein. The Delaware Trustee shall be one of the trustees
of the Issuer Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) 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, 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 under this Trust
Agreement, and to perform all acts in furtherance thereof, including the
following:
(i) As among the Issuer Trustees, the Administrative Trustees,
and each of them, 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 perform on behalf of
the Issuer Trust the Underwriting Agreement and to cause the
Issuer Trust to enter into, and to execute, deliver and
perform on behalf of the Issuer Trust the Certificate
Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and
function of the Issuer Trust;
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(C) assisting in the registration of the Preferred
Securities under the Securities Act and under state
securities or blue sky laws, and the qualification of this
Trust Agreement under the Trust Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges or the
Nasdaq National Market or any other automated quotation
system as shall be determined by the Depositor, with the
registration of the Preferred Securities under the Exchange
Act, if required, and with the preparation and filing of all
periodic and other reports and other documents pursuant to
the foregoing;
(E) assisting in the sending of notices (other than
notices of default) and other information regarding the
Trust Securities and the Debentures to the Holders in
accordance with this Trust Agreement;
(F) the appointment of a Paying Agent and Securities
Registrar in accordance with this Trust Agreement;
(G) 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;
(H) execution of the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust Agreement;
(I) execution and delivery of closing certificates, if
any, pursuant to the Underwriting Agreement and application
for a taxpayer identification number for the Issuer Trust;
(J) unless otherwise determined by the Sponsor, the
Depositor, the Property Trustee, or the Administrative
Trustees or as otherwise required by the Delaware Statutory
Trust Act, the Trust Indenture Act or other applicable law,
to execute on behalf of the Issuer Trust (either acting
alone or together with any or all of the Administrative
Trustees) any documents that the Administrative Trustees
have the power to execute pursuant to this Trust Agreement;
(K) execution and delivery on behalf of the Issuer
Trust of due bills for amounts owed upon conversion,
redemption or repurchase of Trust Securities or with respect
to distributions on Trust Securities, in each case in
accordance with the terms of such Trust Securities and this
Trust Agreement; and
(L) the taking of any action incidental to the
foregoing as the Issuer Trustees may from time to time
determine is necessary or advisable to give effect to the
terms of this Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Issuer
Trust with respect to the following matters:
(A) 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;
(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;
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(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 preparation, execution and filing of
the certificate of cancellation with the Secretary of State
of the State of Delaware;
(I) after an Event of Default (other than under
paragraph (b),(c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the
Property Trustee) 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); and
(J) except as otherwise provided in this Section
2.7(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer
Trust (or the Issuer Trustees acting on behalf of the Issuer Trust) shall
not undertake any business, activities or transactions except as expressly
provided herein or contemplated hereby. In particular, the Issuer Trustees
(acting on behalf of the Issuer Trust) shall not (i) acquire any
investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided herein, (iii)
take any action that would reasonably be expected to cause the Issuer
Trust to become taxable as a corporation or classified as other than a
grantor trust for United States Federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt (except that
the issuance of due bills for amounts owed upon conversion, redemption or
repurchase of Trust Securities or with respect to distributions on Trust
Securities shall be permitted), (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property, (vi)
invest any proceeds received by the Issuer Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Trust
Securities pursuant to the terms of this Trust Agreement and of the Trust
Securities, (vii) acquire any assets other than the Trust Property, (viii)
possess any power or otherwise act in such a way as to vary the Trust
Property, (ix) possess any power or otherwise act in such a way as to vary
the terms of the Trust Securities in any way whatsoever (except to the
extent expressly authorized in this Trust Agreement or by the terms of the
Trust Securities) or (x) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Issuer Trust other
than the Trust Securities (except that the issuance of due bills for
amounts owed upon conversion, redemption or repurchase of Trust Securities
or with respect to distributions on Trust Securities shall be permitted).
The Property Trustee shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the
interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issuance and sale of the Preferred
Securities, the Sponsor shall have the right and, if the Sponsor shall
desire that the actions be taken, the 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 Sponsor in 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 of and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Preferred Securities, including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of
the Preferred Securities and the determination of any and all such
acts, other than actions that must be taken by or on behalf of the
Issuer Trust, and the advice to the Issuer 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 Sponsor
deems necessary or advisable in order to comply with the applicable
laws of any such states;
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(iii) 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 National Market or any other automated quotation system for
listing upon notice of issuance of any Preferred Securities and
filing with such exchange or self-regulatory organization such
notification and documents as may be necessary from time to time to
maintain such listing;
(iv) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of
the Preferred Securities; and
(v) the taking of any other actions necessary or desirable to
carryout 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 Investment Company Act, and will not be taxable as a
corporation or classified as other than a grantor trust for United States
Federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Sponsor for United States Federal income tax purposes.
In this connection, the Sponsor, the Depositor and the Administrative
Trustees are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that
they determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the Holders of the Outstanding Preferred
Securities. In no event shall the Sponsor, the Depositor or the Issuer
Trustees be liable to the Issuer Trust or the Holders for any failure to
comply with this Section that results from a change in law or regulation
or in the interpretation thereof.
SECTION 2.8 Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust Property.
SECTION 2.9 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents shall
have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from
the Payment Account in accordance with this Trust Agreement. All monies
and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for
the exclusive benefit of the Holders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and
any other payments or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1 Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including of Additional Amounts)
will be made on the Trust Securities at the rate and on the dates that
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payments of interest (including 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 accumulate 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] [semi-annually] in arrears on the day of
[ _________, _________,] and _________, of each year, commencing on
_________. If any date on which a Distribution is otherwise payable
on the Trust Securities is not a Business Day, then the payment of
such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect
of any such delay), with the same force and effect as if made on the
date on which such payment was originally payable (each date on
which distributions are payable in accordance with this Section
4.1(a), a "Distribution Date").
(ii) In the event (and to the extent) that the Depositor
exercises its right under the Indenture to defer the payment of
interest on the Debentures, Distributions on the Trust Securities
shall be deferred but shall continue to accumulate. Distributions on
the Trust Securities shall be payable at a rate of ______% per annum
of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full quarterly period shall be
computed on the basis of a 360-day year of twelve 30-day months. The
amount of Distributions for any partial period shall be computed on
the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in that period. The amount
of Distributions payable for any period shall include the Additional
Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable
on each Distribution Date only to the extent 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 for such Distribution Date, which
shall be the 15th calendar day, whether or not a Business Day, before the
relevant Distribution Date. Distributions payable on any Trust Securities
that are not punctually paid on any Distribution Date will cease to be
payable to the Person in whose name such Trust Securities are registered
on the relevant record date, and such defaulted Distribution will instead
be payable to the Person in whose name such Trust Securities are
registered on the special record date or other specified date for
determining Holders entitled to such defaulted interest established in
accordance with the Indenture.
[(c) If on any Distribution Date the Trust Securities are rated
below "B" by S&P or Moody's, or if the Federal Reserve so directs, then in
lieu of paying the Distribution due on such Distribution Date, the Issuer
Trust shall issue on such Distribution Date a due ▇▇▇▇ for such
Distribution, which due ▇▇▇▇ shall be in the form of Exhibit D and shall
mature one year after its date of issuance. The provisions of Article V of
this Trust Agreement shall apply, mutatis mutandis, to any such due ▇▇▇▇
as if it were a Trust Securities Certificate.]
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 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 sent of
12
the actual Redemption Price on the date that such Redemption Price
is calculated);
(iii) the CUSIP number or CUSIP numbers of the Preferred
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount
of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accumulate on and after
said date, except as provided in Section 4.2(d) below; and
(vi) if the Preferred Securities are no longer in
book-entry-only form, the place or places where the Preferred
Securities Certificates are to be surrendered for the payment of the
Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption or payment at stated maturity of the
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 Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee will,
with respect to Book-Entry Preferred Securities, irrevocably deposit with
the Clearing Agency for such Book-Entry Preferred Securities, to the
extent available therefor, funds sufficient to pay the applicable
Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders of
the Preferred Securities. With respect to Preferred Securities that are
not Book-Entry Preferred 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 of the Preferred
Securities upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the
Securities Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such
deposit, all rights of Holders holding Trust Securities so called for
redemption will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and
such 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 (without any interest or other
payment in respect of any such delay), 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
Sponsor 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 pro rata to the Common Securities and the Preferred Securities
based upon the relative Liquidation Amounts of such classes. The
particular Preferred Securities to be redeemed shall be selected on a pro
rata basis based upon their respective Liquidation Amounts not more than
60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption by
any method the Property Trustee deems fair and appropriate, provided that
so long as the Preferred Securities are in book-entry-only form, such
selection shall be made in accordance with the customary procedures for
the Clearing Agency for the Preferred Securities. The Property Trustee
13
shall promptly notify the Securities Registrar in writing of the Preferred
Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof
to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
[(f) If on any Redemption Date the Trust Securities are rated below
"B" by S&P or Moody's, or if the Federal Reserve so directs, then in lieu
of paying the Redemption Price due on such Redemption Date, the Issuer
Trust shall issue on such Redemption Date a due ▇▇▇▇ for such Redemption
Price, which due ▇▇▇▇ shall be in the form of Exhibit D and shall mature
one year after its date of issuance. The provisions of Article V of this
Trust Agreement shall apply, mutatis mutandis, to any such due ▇▇▇▇ as if
it were a Trust Securities Certificate.]
SECTION 4.3 Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on,
the Redemption Price of, and the Liquidation Distribution in respect of,
the Trust Securities, as applicable, shall be made, subject to Section
4.2(e), pro rata among the Common Securities and the Preferred Securities
based on the Liquidation Amount of the Trust Securities; provided,
however, that if on any Distribution Date, Redemption Date or Liquidation
Date any Event of Default resulting from a Debenture Event of Default
specified in Section [501(1) or 501(2)] [601(1) or 601(2)] of the
Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts) on, Redemption Price of,
or Liquidation Distribution in respect of, any Common Security, and no
other payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including any Additional
Amounts) on all Outstanding Preferred Securities for all Distribution
Periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities then called for redemption, or in the
case of payment of the Liquidation Distribution the full amount of such
Liquidation Distribution on all Outstanding Preferred Securities, shall
have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of
all Distributions (including any Additional Amounts) on, or the Redemption
Price of, the Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Common Securities
shall have no right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Trust Agreement
with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Preferred Securities and not on behalf of the Holders
of the Common Securities, and only the Holders of the Preferred Securities
will have the right to direct the Property Trustee to act on their behalf.
SECTION 4.4 Payment Procedures.
Payments of Distributions (including any Additional Amounts) in respect of
the Preferred Securities shall, subject to the next succeeding sentence, be made
by check mailed to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Preferred Securities are held
by a Clearing Agency, such Distributions shall be made to the Clearing Agency in
immediately available funds. A Holder of $1,000,000 or more in aggregate
Liquidation Amount of Preferred Securities may receive payments of Distributions
(including any Additional Amounts) by wire transfer of immediately available
funds upon written request to the Property Trustee not later than the 15th
calendar day, whether or not a Business Day, before the relevant Distribution
Date. Payments in respect of the Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the Holders of the
Common Securities.
SECTION 4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Sponsor'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) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
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Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrative Trustees shall provide the
Sponsor, the Depositor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing. The Issuer Trustees shall
comply with United States Federal withholding and backup withholding tax laws
and information reporting requirements with respect to any payments to Holders
under the Trust Securities.
SECTION 4.6 Payment of Expenses of the Issuer Trust.
The Sponsor shall pay to the Issuer Trust, and reimburse the Issuer Trust
for, the full amount of any costs, expenses or liabilities of the Issuer Trust
(other than obligations of the Issuer Trust to pay the Holders of any Preferred
Securities or other similar interests in the Issuer Trust the amounts due such
Holders pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be), including, without limitation, any taxes, duties
or other governmental charges of whatever nature (other than withholding taxes)
imposed on the Issuer Trust by the United States or any other taxing authority.
Such payment obligation includes any such costs, expenses or liabilities of the
Issuer Trust that are required by applicable law to be satisfied in connection
with a dissolution of the Issuer Trust.
SECTION 4.7 Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities (or any
Owner with respect thereto) shall be reduced by the amount of any corresponding
payment such Holder (or Owner) has directly received pursuant to Section [508]
[608] of the Indenture or Section 5.14 of this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1 Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by the Sponsor
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 Sponsor shall be
the sole beneficial owner of the Issuer Trust.
SECTION 5.2 The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $[ ] Liquidation Amount and integral multiples of $[ ] in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $[ ] Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be (i) executed on behalf of the Issuer
Trust by manual or facsimile signature of at least one Administrative Trustee
and, if executed on behalf of the Issuer Trust by facsimile, countersigned by
the Securities Registrar or its agent and (ii) authenticated by the Property
Trustee by manual or facsimile signature of an authorized signatory thereof and,
if executed by such authorized signatory of the Property Trustee by facsimile,
countersigned by the Securities Registrar or its agent. Trust Securities
Certificates bearing the manual signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Issuer Trust or the Property Trustee or, if executed on behalf of the Issuer
Trust or the Property Trustee by facsimile, countersigned by the Securities
Registrar or its agent, 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 Sections 5.4, 5.11
and 5.13.
SECTION 5.3 Execution and Delivery of Trust Securities Certificates.
At the Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and delivered
to or upon the written order of the Sponsor, such written order executed by one
authorized officer thereof, without further corporate action by the Sponsor, in
authorized denominations.
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SECTION 5.4 Registration of Transfer and Exchange of Preferred Securities
Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which the
transfer agent and registrar designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Preferred Securities Certificates and Common
Securities Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of
Preferred Securities Certificates as herein provided. ____________________ shall
be the initial Securities Registrar. The provisions of Sections 8.1, 8.3 and 8.6
herein shall apply to ___________________ also in its role as Securities
Registrar, for so long as ___________________ shall act as Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute on behalf of the Issuer
Trust (and if executed on behalf of the Issuer Trust by a facsimile signature,
such certificate shall be countersigned by the Securities Registrar or its
agent) and deliver, in the name of the designated transferee or transferees, one
or more new Preferred Securities Certificates in authorized denominations of a
like aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. The Securities Registrar shall not be
required to register the transfer of any Preferred Securities that have been
called for redemption during a period beginning at the opening of business 15
days before the day of selection for such redemption. At the option of a Holder,
Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by an
Administrative Trustee or the Securities Registrar in accordance with such
Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred 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 Preferred
Securities Certificates.
SECTION 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate, and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the Issuer Trust
shall execute and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.5, 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
corresponding to that evidenced by the lost, stolen or destroyed Trust
Securities Certificate, as if originally issued, whether or not the lost, stolen
or destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.6 Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
none of the Issuer Trustees, the Administrative Trustees and the Securities
Registrar shall be bound by any notice to the contrary.
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SECTION 5.7 Lists of Holders; Access to List of Holders' Names and
Addresses.
(a) The Administrative Trustees shall furnish or cause to be
furnished to the Property Trustee (a) semiannually, on or before June 30
and December 31 of each year, a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders
(a "List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (b) at such other times as the Property Trustee may
request in writing, within 30 days after the receipt by the
Administrative Trustees of any such request, a List of Holders as of a
date not more than 15 days prior to the time such list is furnished, in
each case to the extent such information is in the possession or control
of the Administrative Trustees and has not otherwise been received by the
Property Trustee in its capacity as such. The Property Trustee shall
preserve each such List of Holders until it receives a new List of
Holders.
(b) The Property Trustee shall comply with the requirements of
Section 312(b) of the Trust Indenture Act.
(c) Each Holder and each Owner shall be deemed to have agreed not
to hold the Sponsor, 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 5.8 Maintenance of Office Agency.
The Administrative Trustees shall designate an office or offices or agency
or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuer Trustees in respect of the Trust Securities Certificates may be
served. The Administrative Trustees initially designate ___________, Attention:
_____________________, as its office and agency for such purposes. The
Administrative Trustee shall give prompt written notice to the Sponsor, the
Depositor, the Property Trustees and to the Holders of any change in the
location of the Securities Register or any such office or agency.
SECTION 5.9 Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Property Trustee may
revoke such power and remove the Paying Agent in its sole discretion. The Paying
Agent shall hold in trust for the benefit of the Holders entitled thereto all
sums held by it, if any, for payment to the Holders until such sums shall be
paid to such Holders and shall give the Property Trustee notice of any default
by the Issuer Trust or any other obligor on any of the Trust Securities in the
making of any such payment. The Paying Agent shall initially be
________________. Any Person acting as Paying Agent shall be permitted to resign
as Paying Agent upon 30 days' written notice to the Administrative Trustees and
the Property Trustee. If ________________ 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 (which shall be a bank or trust
company) that is reasonably acceptable to the Administrative Trustees, the
Sponsor and the Depositor to act as Paying Agent. Such successor Paying Agent or
any additional Paying Agent shall execute and deliver to the Issuer Trustees an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Issuer Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Holders in trust for the benefit of the Holders entitled thereto until such
sums shall be paid to such Holders and will give the Property Trustee notice of
any default by the Issuer Trust or any other obligor on any of the Trust
Securities in the making of any such payment. 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
________________ also in its role as Paying Agent, for so long as
________________ shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise
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SECTION 5.10 Ownership of Common Securities by Sponsor.
At the Time of Delivery, the Sponsor shall acquire beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law,
other than a transfer in connection with a consolidation or merger of the
Depositor into another Person, or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person pursuant to Section [801] [901] of the Indenture, any attempted transfer
of the Common Securities other than to a direct or indirect subsidiary of the
Sponsor shall be void. The Administrative Trustees shall cause each Common
Securities Certificate issued to the Depositor to contain a legend consistent
with this Section 5.10.
SECTION 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities
Certificate or Certificates representing Book-Entry Preferred Securities
Certificates, to be delivered to, or on behalf of, DTC, the initial
Clearing Agency, by, or on behalf of, the Issuer Trust. Such Preferred
Securities Certificate or Certificates shall initially be registered on
the Securities Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Owner will receive a Definitive Preferred
Securities Certificate representing such Owner's interest in such
Preferred Securities, except as provided in Section 5.13. Unless and until
Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificate shall be exercised only through the Clearing
Agency and shall be limited to those established by law and
agreements between such Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Certificate Depository
Agreement, unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.13, the initial
Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments on the
Preferred Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Sponsor in the form of a definitive
Common Securities Certificate.
SECTION 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Book-Entry Preferred Securities Certificates, the
Administrative Trustees and the Issuer Trustee shall give all such notices and
communications specified herein to be given to the Clearing Agency, and shall
have no obligations to the Owners.
SECTION 5.13 Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Issuer Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Depositor is unable to locate a qualified successor, (b) the Depositor at its
option advises the Issuer Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of a
Debenture Event of Default, Owners of Preferred Securities Certificates
representing beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Administrative Trustees in writing that the
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continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Administrative Trustees shall notify the other Issuer Trustees and the Clearing
Agency, and the Clearing Agency, in accordance with its customary rules and
procedures, shall notify all Clearing Agency Participants for whom it holds
Preferred Securities of the occurrence of any such event and of the availability
of the Definitive Preferred Securities Certificates to Owners of such class or
classes, as applicable, requesting the same. Upon surrender to the
Administrative Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of the
Clearing Agency, if executed on behalf of the Issuer Trust by facsimile,
countersigned by the Securities Registrar or its agent. Neither the Securities
Registrar nor the Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Preferred Securities
Certificates, the Issuer Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as holders of Trust Securities. The Definitive
Preferred Securities Certificates shall be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees that meets the requirements of any stock exchange or
automated quotation system on which the Preferred Securities are then listed or
approved for trading, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
SECTION 5.14 Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in
the Property Trustee (in its capacity as such) in accordance with Section
2.9, and the Holders shall not have any right or title therein other than
the undivided beneficial interest in the assets of the Issuer Trust
conferred by their Trust Securities and they shall have no right to call
for any partition or division of property, profits or rights of the Issuer
Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this
Trust Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Holders against payment of
the purchase price therefor will be fully paid and nonassessable by the
Issuer Trust. The Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if,
upon a Debenture Event of Default, the Debenture Trustee fails or the
holders of not less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Property Trustee or the Holders of at
least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have the right to make such declaration by a notice in
writing to the Sponsor, the Depositor, the Debenture Trustee and the
Property Trustee, in the case of notice by the Holders of the Preferred
Securities, or to the Sponsor, the Depositor, the Debenture Trustee and
the Holders of the Preferred Securities, in the case of notice by 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, provided that the payment of principal and interest on
such Debentures shall remain subordinated to the extent provided in the
Indenture.
At any time after 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 Liquidation
Amount of the Preferred Securities, by written notice to the Property
Trustee, the Sponsor, the Depositor and the Debenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Depositor or the Sponsor has paid or deposited with
the Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of the
Debentures,
(B) any accrued Additional Interest (as defined in the
Indenture) on all of the Debentures,
(C) the principal of (and premium, if any, on) any
Debentures that have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest (as defined in the Indenture) thereon at the rate
borne by the Debentures, and
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(D) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture
Trustee and the Property Trustee, their agents and counsel;
and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures that
has become due solely by such acceleration, have been cured or
waived as provided in Section [513] [613] of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
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
that under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Debenture. No such rescission
shall affect any subsequent default or impair any right consequent
thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of
any part of the Preferred Securities a record date shall be established
for determining Holders of Outstanding Preferred Securities entitled to
join in such notice, which record date shall be at the close of business
on the day the Property Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons,
shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided that, unless such
declaration of acceleration, or rescission and annulment, as the case may
be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is 90 days after such
record date, such notice of declaration of acceleration, or rescission
and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder,
from giving, after expiration of such 90-day period, a new written notice
of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice that has been
canceled pursuant to the proviso to the preceding sentence, in which
event a new record date shall be established pursuant to the provisions
of this Section 5.14(b).
(c) For so long as any Preferred 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 [501(1) or 501(2)] [601(1) or 601(2)] of the Indenture, any
Holder of Preferred Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section [508] [608]
of the Indenture, for enforcement of payment to such Holder of any amounts
payable in respect of Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). Except as set forth in Section 5.14(b)
and this Section 5.14(c), the Holders of Preferred Securities shall have
no right to exercise directly any right or remedy available to the holders
of, or in respect of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of
this Section 5.14 and below in this Section 5.14(d), the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities may, on
behalf of the Holders of all the Preferred Securities, waive any past
default or Event of Default and its consequences. Upon such waiver, any
such default or Event of Default shall cease to exist, and any default or
Event of Default arising there from shall be deemed to have been cured,
for every purpose of this Trust Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Notwithstanding any other provision of this Trust
Agreement, the right of any Holder (i) to payment of any Distribution
within or after 30 days of the date on which it becomes due and payable or
(ii) to any payment of any Liquidation Distribution or Redemption Price of
any Trust Security on or after it becomes due and payable or (iii) in each
of cases (i) and (ii), to institute suit for the enforcement thereof,
shall not be impaired or affected without the consent of such Holder.
SECTION 5.15 CUSIP Numbers.
The Administrative Trustees in issuing the Preferred Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Property Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
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correctness of such numbers either as printed on the Preferred Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Preferred Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Administrative Trustees will promptly notify the Property Trustee
of any change in the CUSIP numbers.
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 Preferred
Securities shall have any right to vote or in any manner otherwise control
the administration, operation and management of the Issuer Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed
so as to constitute the Holders from time to time as partners or members
of an association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Issuer Trust, the Issuer Trustees shall not (i) direct the
time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or execute any trust or power
conferred on the Debenture Trustee with respect to the Debentures, (ii)
waive any past default that may be waived under Section [513] [613] of the
Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable, or (iv)
consent to any amendment, modification or termination of the Indenture or
the Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of at least a Majority
in Liquidation Amount of the Preferred 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
Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the
Preferred Securities, except by a subsequent vote of the Holders of the
Preferred Securities. The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received with respect to the
Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Issuer Trustees shall, at the expense of the Sponsor, obtain
an Opinion of Counsel experienced in such matters to the effect that such
action shall not cause the Issuer Trust to be taxable as a corporation or
classified as other than a grantor trust for United States Federal income
tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for,
or the Issuer Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the powers, preferences or
special rights of the Preferred Securities, whether by way of amendment to
the Trust Agreement or otherwise, or (ii) the dissolution and winding-up
of the Issuer Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities as a class
will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of the Holders
of at least a Majority in Liquidation Amount of the Preferred Securities.
Notwithstanding any other provision of this Trust Agreement, no amendment
to this Trust Agreement may be made if, as a result of such amendment, it
would cause the Issuer Trust to be taxable as a corporation or classified
as other than a grantor trust for United States Federal income tax
purposes.
SECTION 6.2 Notice of Meetings.
Notice of all meetings of the Holders of the Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities, at such
Holder's registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
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SECTION 6.3 Meetings of Holders of the Preferred Securities.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of the Holders of the Preferred Securities to vote
on any matter upon the written request of the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities, and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Preferred Securities to vote on
any matters as to which such Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Preferred Securities representing at
least a Majority in Liquidation Amount of the Preferred Securities held by the
Holders present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of the Preferred Securities, unless this Trust
Agreement requires a greater number of affirmative votes.
SECTION 6.4 Voting Rights.
Holders shall be entitled to one vote for each $[ ] of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
SECTION 6.5 Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the 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 proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
SECTION 6.6 Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken without
a meeting if Holders holding at least a Majority in Liquidation Amount of all
Preferred Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this Trust
Agreement) shall consent to the action in writing.
SECTION 6.7 Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Holders or the payment of a
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8 Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to 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 signing such instrument or instruments. Proof of execution of any
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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 of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Issuer Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Issuer Trustees,
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 or
among the Holders or the Issuer Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such 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.
A Holder may institute a legal proceeding directly against the Sponsor
under the Guarantee to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Issuer Trust, any Issuer Trustee, or any person or entity.
SECTION 6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the 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 Sponsor,
the Depositor and the Holders that:
(a) the Property Trustee is a _____________, duly organized,
validly existing and in good standing under the laws of _________________;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware banking corporation, duly
organized, validly existing and in good standing under the laws of the
State of Delaware.
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(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee
and the Delaware Trustee enforceable against each of them in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(f) the execution, delivery and performance of this Trust Agreement
have been duly authorized by all necessary corporate or other action on
the part of the Property Trustee and the Delaware Trustee and do not
require any approval of stockholders of the Property Trustee and the
Delaware Trustee and such execution, delivery and performance will not (i)
violate the charter or by-laws of the Property Trustee or the Delaware
Trustee, (ii) violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property Trustee or
the Delaware Trustee is a party or by which it is bound, or (iii) violate
any law, governmental rule or regulation of 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 the case may be) contemplated herein requires the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing law of or the State of Delaware, governing
the banking, trust or general powers of the Property Trustee or the
Delaware Trustee (as appropriate in context), other than the filing of the
Certificate of Trust with the Delaware Secretary of State; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in any
court or before any governmental authority, agency or arbitration board or
tribunal that, individually or in the aggregate, would materially and
adversely affect the Issuer Trust or would question the right, power and
authority of the Property Trustee or the Delaware Trustee, as the case may
be, to enter into or perform its obligations as one of the Trustees under
this Trust Agreement.
SECTION 7.2 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Time of Delivery
on behalf of the Issuer Trust have been duly authorized and will have been
duly and validly executed, issued and delivered by the Issuer Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Trust Agreement, and the Holders will be, as of such
date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust)
under the laws of the State of Delaware or any political subdivision
thereof in connection with the execution, delivery and performance by any
Issuer Trustee of this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES
SECTION 8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be
as provided by this Trust Agreement, subject to Section 10.10 hereof.
Notwithstanding the foregoing, but subject to Section 8.1(c), no provision
of this Trust Agreement shall require any of the Issuer Trustees to expend
or risk its or their own funds or otherwise incur any financial liability
24
in the performance of any of its or their duties hereunder, or in the
exercise of any of its or their rights or powers, if it or they shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees shall be subject to the
provisions of this Section 8.1. To the extent that, at law or in equity,
an Administrative Trustee has duties and liabilities relating to the
Issuer Trust or to the Holders, such Administrative Trustee shall not be
liable to the Issuer Trust or to any Holder for such Administrative
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 Administrative Trustees otherwise
existing at law or in equity, are agreed by the Sponsor, the Depositor and
the Holders to replace such other duties and liabilities of the
Administrative 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 such
Holder for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section
8.1(b) does not limit the liability of the Issuer Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the
Property Trustee shall enforce this Trust Agreement for the benefit of the
Holders and may recover judgment in its own name and as trustee of an
express trust against the Issuer Trust or any other obligor on any of the
Trust Securities for the whole of any amounts remaining due and payable
with respect to any Trust Securities in connection with such Event of
Default.
(d) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically
set forth in this Trust Agreement (including pursuant to Section 10.10),
and no implied covenants shall be read into this Trust Agreement against
the Property Trustee. If an Event of Default has occurred (that has not
been cured or waived pursuant to Section 5.14), the Property Trustee shall
exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(e) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Trust Agreement (including pursuant to Section 10.10), and
the Property Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Trust Agreement (including
pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to
the requirements of this Trust Agreement; but in the case of
any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act are specifically
required to be furnished to the Property Trustee, the
Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
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(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority
in Liquidation Amount of the Preferred Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures
and the Payment Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with
the Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to
Section 3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees, the
Sponsor or the Depositor with their respective duties under this
Trust Agreement, nor shall the Property Trustee be liable for the
default or misconduct of any other Issuer Trustee, the
Administrative Trustees, the Sponsor or the Depositor; and
(vii) subject to Section 8.1(c), no provision of this Trust
Agreement shall require the Property Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Property Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Trust
Agreement or adequate indemnity against such risk or liability is
not reasonably assured to it.
(f) The Administrative Trustees shall not be responsible for
monitoring the compliance by the other Issuer Trustees, the Sponsor or the
Depositor with their respective duties under this Trust Agreement, nor
shall either Administrative Trustee be liable for the default or
misconduct of any other Issuer Trustee, the Sponsor or the Depositor.
SECTION 8.2 Certain Notices.
Within thirty days after the occurrence of any Event of Default actually
known to the Property Trustee, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such Event of Default to the Holders and the Administrative Trustees,
unless such 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 and the Administrative Trustees, unless such exercise shall have been
revoked.
The Property Trustee shall not be deemed to have knowledge of any Event of
Default unless the Property Trustee shall have received written notice or a
Responsible Officer of the Property Trustee charged with the administration of
this Trust Agreement shall have obtained actual knowledge of such Event of
Default.
SECTION 8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
26
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action, (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein, or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, except
as to any matter as to which the Holders of the Preferred Securities are
entitled to vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Sponsor requesting the Sponsor's
opinion as to the course of action to be taken; provided, however, that if
the Sponsor fails to deliver such opinion, the Property Trustee may take
such action, or refrain from taking such action, as the Property Trustee
shall deem advisable and in the 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 Sponsor or the Depositor
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) any direction or act of an Administrative Trustee contemplated
by this Trust Agreement shall be sufficiently evidenced by a certificate
executed by such Administrative Trustee and setting forth such direction
or act;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel of its own
selection (which counsel may be counsel to the Sponsor, the Depositor or
any of their Affiliates, and may include any of its employees) and the
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from
any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Holders pursuant to this Trust
Agreement, unless such Holders shall have offered to the Property Trustee
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities that might be incurred by it in compliance with
such request or direction; provided that, nothing contained in this
Section 8.3(g) shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do
so by one or more Holders, but the Property Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit at
the expense of the Sponsor and shall incur no liability of any kind by
reason of such inquiry or investigation;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible for its own negligence or misconduct with respect to selection
of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may refrain
27
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement. No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which such Person 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, the Sponsor and the
Depositor, 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
Issuer Trustee or such other agent.
SECTION 8.6 Compensation; Indemnity; Fees.
The Sponsor agrees:
(a) to pay to the Issuer Trustees from time to time such reasonable
compensation for all services rendered by them hereunder as may be
separately agreed by the Sponsor and the Issuer Trustees from time to time
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse 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 their agents and
counsel), except any such expense, disbursement or advance as shall be
determined to have been caused by their own 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) any Affiliate of any
Issuer Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Issuer Trustee, and (iv) any employee or
agent of the Issuer Trust (referred to herein as an "Indemnified Person")
from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by such Indemnified Person
by reason of the creation, operation or dissolution of the Issuer Trust or
any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Issuer Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred
on such Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence, bad faith or willful misconduct with respect to such acts or
omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement and the removal or resignation of any 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.
The Sponsor and any Issuer Trustee may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the 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
28
competitive with the business of the Issuer Trust, shall not be deemed wrongful
or improper. Neither the Sponsor nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust even
if such opportunity is of a character that, if presented to the Issuer Trust,
could be taken by the Issuer Trust, and the Sponsor and 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 Sponsor or any Affiliate of the Sponsor, 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 Sponsor or its Affiliates.
SECTION 8.7 Corporate Property Trustee Required; Eligibility of Issuer
Trustees and Administrative Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person
that is a national or state chartered bank and eligible pursuant to the
Trust Indenture Act to act as such and that has a combined capital and
surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section
8.7 and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of
this Section 8.7, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article VIII. At the time of
appointment, the Property Trustee must have securities rated in one of the
three highest rating categories by a nationally recognized statistical
rating organization.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more persons authorized to
bind that entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural
person who is at least 21 years of age and a resident of the State of
Delaware, or (ii) a legal entity with its principal place of business in
the State of Delaware and that otherwise meets the requirements of
applicable Delaware law and that shall act through one or more persons
authorized to bind such entity.
SECTION 8.8 Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
SECTION 8.9 Co-Trustees and Separate Trustee.
Unless and until a Debenture 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 Holder of Common
Securities and the Administrative Trustees shall have the power to appoint one
or more Persons either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If a
Debenture Event of Default shall have occurred and be continuing, the Property
Trustee shall have the sole power to so appoint such a co-trustee or separate
trustee, and upon the written request of the Property Trustee, the Sponsor, the
Depositor and the Administrative Trustees shall for such purpose join with the
Property Trustee in the execution, delivery, and performance of all instruments
and agreements necessary or proper to appoint, such co-trustee or separate
trustee. Any co-trustee or separate trustee appointed pursuant to this Section
29
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 Sponsor and 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 Sponsor and the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrative Trustees, and the Trust Securities shall be delivered by
the Property Trustee, and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the
Property Trustee specified hereunder shall be exercised solely by the
Property Trustee and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any particular act
is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers,
duties and obligations shall be exercised and performed by such co-trustee
or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Sponsor and the
Depositor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section 8.9, and, in case a
Debenture Event of Default has occurred and is continuing, the Property
Trustee shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Sponsor or
the Depositor. Upon the written request of the Property Trustee, the
Sponsor and the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigning or removed may be
appointed in the manner provided in this Section 8.9.
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.
(d) The Property Trustee shall not be liable by reason of any act of
a co-trustee or separate trustee.
(e) 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 VIII
shall become effective until the acceptance of appointment by the successor
Issuer Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Holders and by
appointing a successor Relevant Trustee. The Relevant Trustee shall appoint a
successor by requesting from at least three Persons meeting the eligibility
requirements its expenses and charges to serve as the Relevant Trustee on a form
provided by the Administrative Trustees, and selecting the Person who agrees to
the lowest expenses and charges. 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 Sponsor,
in the case of the Property Trustee, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
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The Administrative Trustees, or any of them, may be removed at any time by
Act of the Holders of Common Securities delivered to the Relevant Trustee.
The Property Trustee or the Delaware Trustee, or both of them, may be
removed by Act of the Holders of at least a Majority in Liquidation Amount of
the Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and, in the case of the Property Trustee, on behalf of the Issuer
Trust) (i) for cause (including upon the occurrence of an Event of Default
described in subparagraph (d) of the definition thereof with respect to the
Relevant Trustee), or (ii) at any time if a Debenture Event of Default shall
have occurred and be continuing. Unless and until a Debenture Event of Default
shall have occurred and be continuing, the Property Trustee or the Delaware
Trustee, or both of them, may be removed at any time by Act of the Holders of
the Common Securities.
If a resigning Property Trustee or Delaware Trustee shall fail to appoint
a successor, or if the Property Trustee or the Delaware Trustee shall be removed
or become incapable of acting as Issuer Trustee, or if a vacancy shall occur in
the office of the Property Trustee or the Delaware Trustee for any cause, the
Holders of the Common Securities by Act of such Holders delivered to the
Relevant Trustee or, if a Debenture Event of Default shall have occurred and be
continuing, the Holders of the Preferred Securities, by Act of the Holders of
not less than 25% in aggregate Liquidation Amount of the Preferred Securities
then Outstanding delivered to such Relevant Trustee, may appoint a successor
Relevant Trustee or Trustees, and such successor Issuer Trustee shall comply
with the applicable requirements of Section 8.11. If no successor Relevant
Trustee shall have been so appointed by the Holders of the Common Securities or
Preferred Securities, as the case may be, and accepted appointment in the manner
required by Section 8.11, any Holder, on behalf of such Holder and all others
similarly situated, or any other Issuer Trustee, may petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.8 and shall give notice to
the Sponsor and the Depositor and to the Administrative Trustees. Each notice
shall include the name of the successor Relevant Trustee and the address of its
Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor being a Person who satisfies the
eligibility requirement for the Delaware Trustee set forth in Section 8.7).
SECTION 8.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Issuer Trust, and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee, other than the filing of an amendment to the Certificate of
Trust to the extent required under the Delaware Statutory Trust Act; but, on
request of the Issuer Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder with respect to the Trust Securities and the
Issuer Trust.
Upon request of any 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 preceding paragraph.
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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 VIII.
SECTION 8.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person, succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto, other
than the filing of an amendment to the Certificate of Trust to the extent
required under the Delaware Statutory Trust Act.
SECTION 8.13 Preferential Collection of Claims Against Depositor or Issuer
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Preferred
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
SECTION 8.14 Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or any other judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the
event the Property Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Property Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel, and any other amounts due
the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.15 Reports by Property Trustee.
(a) Within 60 days after [May 15] of each year commencing with [May
15], , the Property Trustee shall transmit to all Holders in accordance
with Section 313(c) of the Trust Indenture Act, and to the Sponsor and the
Depositor, a brief report dated as of the immediately preceding [May 15]
with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under
said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the
period since the Closing Date) ending with such [May 15] or, if the
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Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its
opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each
national stock exchange, the Nasdaq National Market or such other
interdealer quotation system or self-regulatory organization upon which
the Preferred Securities are listed or quoted, if any, and with the
Commission, the Sponsor and the Depositor.
SECTION 8.16 Reports to the Property Trustee and Holders.
Each of the Sponsor, the Depositor and the Administrative Trustees shall
provide to the Property Trustee and the Holders 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. The Sponsor, the Depositor and the Administrative Trustees shall
annually file with the Property Trustee a certificate specifying whether such
Person is in compliance with all of the terms and covenants (if any) applicable
to such Person hereunder.
SECTION 8.17 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor, the Depositor and the Administrative Trustees shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 8.18 Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be [four] [five], unless the
Property Trustee also acts as the Delaware Trustee, in which case the
number of Issuer Trustees may be [three.] [four.]
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee
shall not operate to annul or dissolve the Issuer Trust.
SECTION 8.19 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) or making any governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the 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.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1 Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve,
and its affairs be wound up, on _________ (the "Expiration Date"), following the
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distribution of the Trust Property in accordance with Section 9.4.
SECTION 9.2 Early Dissolution.
The first to occur of any of the following events is an "Early Dissolution
Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Sponsor, unless the Common Securities
shall be transferred as provided by Section 5.10, in which case this
provision shall refer instead to any such successor Holder of the Common
Securities;
(b) the written direction to the Property Trustee from all of the
Holders of the Common Securities at any time to dissolve the Issuer Trust
and to distribute the Debentures to Holders in exchange for the Preferred
Securities (which direction is optional and wholly within the discretion
of the Holders of the Common Securities);
(c) the redemption of all of the Preferred Securities in connection
with the redemption or repayment 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 Dissolution.
The respective obligations and responsibilities of the Issuer Trustees,
the Administrative Trustees and the Issuer Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Holders of all amounts required to be distributed
hereunder upon the liquidation of the Issuer Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b)
the payment of any expenses owed by the Issuer Trust; and (c) the discharge of
all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Issuer Trust or
the Holders.
SECTION 9.4 Liquidation.
(a) If an Early Dissolution 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 given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register.
All such notices of liquidation shall:
(i) state the CUSIP Number of the Trust Securities;
(ii) state the Liquidation Date;
(iii) 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, or if Section
9.4(d) applies, a right to receive a Liquidating Distribution; and
(iv) 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) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the
Debentures to Holders, the Property Trustee, either itself acting as
exchange agent or through the appointment of a separate exchange agent,
shall establish a record date for such distribution (which shall be not
more than 30 days prior to the Liquidation Date) and, establish such
34
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures
will be issued to Holders of Trust Securities Certificates, upon surrender
of such Certificates to the exchange agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid Distributions on such
Trust Securities Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest
or principal will be made to Holders of Trust Securities Certificates with
respect to such Debentures) and (iv) all rights of Holders holding Trust
Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, or if an Early Dissolution Event specified in clause (c) of
Section 9.2 occurs, the Trust Property shall be liquidated, and the Issuer
Trust shall be dissolved and its affairs wound-up, by the Property Trustee
in such manner as the Property Trustee determines. In such event, on the
date of the dissolution, winding-up or other termination 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
dissolution, winding up or termination, 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 dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders
of Preferred Securities, except that, if a Debenture Event of Default
specified in Section [501(1) or 501(2)] [601(1) or 601(2)] of the
Indenture has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities as provided in Section 4.3.
SECTION 9.5 Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust.
The Issuer Trust may not merge with or into, consolidate, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5. At the request of the Holders of the Common Securities,
with the consent of the Administrative Trustees, but without the consent of the
Holders of the Preferred Securities, the Property Trustee or the Delaware
Trustee, the Issuer Trust may merge with or into, consolidate, amalgamate, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to a trust organized as such under the laws of any state;
provided, that (i) such successor entity either (a) expressly assumes all of the
obligations of the Issuer Trust with respect to the Preferred Securities, or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities have the same priority as the Preferred Securities
with respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) a trustee of such successor entity possessing the same powers
and duties as the Property Trustee is appointed to hold the Debentures, (iii)
the Successor Securities are listed, or any Successor Securities will be listed
upon notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are listed, (iv) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
35
Property Trustee 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 Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an "investment company" under
the Investment Company Act, and (viii) the Depositor or its permitted transferee
owns all of the Common Securities of such successor entity and the Sponsor
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee Agreement.
Notwithstanding the foregoing, the Issuer Trust shall not, except with the
consent of Holders of all of the Preferred Securities, consolidate, amalgamate,
merge with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Issuer Trust or the successor entity to be taxable as a
corporation or classified as other than a grantor trust for United States
Federal income tax purposes.
[ARTICLE [___]]
[CONVERSION]
[ARTICLE [___]]
[PURCHASE AT OPTION OF HOLDER]
[ARTICLE [___]]
[PURCHASE AT OPTION OF HOLDER UPON A CHANGE OF CONTROL]
[ARTICLE [___]]
[CONTINGENT DISTRIBUTIONS]
[ARTICLE [___]]
CONTINGENT ACCRETION]
[ARTICLE [___]]
[RESET AND REMARKETING]
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of any person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal representatives
or heirs of such person or any Holder for such person, to claim an accounting,
take any action or bring any proceeding in any court for a partition or winding
up of the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.2 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Holders of all of the Common Securities,
without the consent of any Holder of the Preferred Securities, (i) to cure
any ambiguity, correct or supplement any provision herein that may be
inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of
this Trust Agreement, or (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Issuer Trust will not be taxable as a corporation or
classified as other than a grantor trust for United States Federal income
tax purposes at all times that any Trust Securities are outstanding, to
ensure that the Issuer Trust will not be required to register as an
"investment company" under the Investment Company Act or to ensure the
treatment of the Preferred Securities as Tier 1 regulatory capital under
the prevailing Federal Reserve rules and regulations; provided, however,
that in the case of either clause (i) or (ii), such action shall not
adversely affect in any material respect the interests of any Holder. Any
such amendment shall become effective when notice is given to the Holders
of the Preferred Securities.
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(b) Except as provided in Section 10.2(c), any provision of this
Trust Agreement may be amended by the Administrative Trustees, the
Property Trustee, and the Holders of all of the Common Securities with (i)
the consent of Holders of at least a Majority in Liquidation Amount of the
Preferred 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 Trustees or the Administrative 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 taxable as a
corporation or as other than a grantor trust for United States Federal
income tax purposes or affect the Issuer Trust's exemption from status as
an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date, or (ii) restrict the right of a Holder
to institute suit for the enforcement of any such payment on or after such
date; and notwithstanding any other provision herein, without the
unanimous consent of the Holders (such consent being obtained in
accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of this
Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement that would cause the Issuer Trust to fail or cease to qualify
for the exemption from status as an "investment company" under the
Investment Company Act or to be taxable as a corporation or to be
classified as other than a grantor trust for United States Federal income
tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Sponsor, the Depositor and the
Administrative Trustees, this Trust Agreement may not be amended in a
manner that imposes any additional obligation on the Depositor, the
Sponsor or the Administrative Trustees.
(f) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Property Trustee, this Trust
Agreement may not be amended in a manner that imposes any additional
obligation on the Property Trustee.
(g) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Delaware Trustee, this Trust
Agreement may not be amended in a manner that imposes any additional
obligation on the Delaware Trustee.
(h) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees or the Property Trustee shall promptly provide
to the Sponsor and the Depositor a copy of such amendment.
(i) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement that affects
its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement
is in compliance with this Trust Agreement.
SECTION 10.3 Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 10.4 Governing Law.
This Trust Agreement and the rights and obligations of each of the
Holders, the Issuer Trust, the Sponsor, the Depositor, and the Issuer Trustees
with respect to this Trust Agreement and the Trust Securities shall be construed
in accordance with and governed by the laws of the State of Delaware without
reference to its conflicts of laws provisions.
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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, with the same
force and effect as though made on the date fixed for such payment, and no
Distributions shall accumulate on such unpaid amount for the period after such
date.
SECTION 10.6 Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Sponsor, the Depositor, the Issuer Trust, and any Issuer
Trustee, including any successor by operation of law. Except in connection with
a consolidation, merger or sale involving the Depositor that is permitted under
Article 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 that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Holder, the Sponsor 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 Preferred Securities, to such Holder as such Holder's name and
address may appear on the Securities Register; (b) in the case of the Holder of
the Common Securities or the Depositor, to The South Financial Group, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: General Counsel, or to such other address as may be specified in a
written notice by the Holder of the Common Securities or the Depositor, as the
case may be, to the Property Trustee; and (c) in the case of the Sponsor, to The
South Financial Group, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇, Attention: General Counsel, or to such other
address as may be specified in a written notice by the Sponsor to the Property
Trustee. Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission. Such notice, demand or other communication to
or upon the Depositor, the Holder of the Common Securities or the Sponsor shall
be deemed to have been sufficiently given or made only upon actual receipt of
the writing by the Depositor, the Holder of the Common Securities or the
Sponsor, as the case may be. Any notice, demand or other communication that by
any provision of this Trust Agreement is required or permitted to be given or
served to or upon the Issuer Trust, the Property Trustee, the Delaware Trustee,
the Administrative Trustees or the Issuer Trust shall be given in writing
addressed to such Person as follows: (a) with respect to the Property Trustee,
to _______________________, Attention: ________________________; (b) with
respect to the Delaware Trustee, to ______________________, Attention:
______________________; (c) with respect to the Administrative Trustees, to them
at The South Financial Group, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇; and (d) with respect to the Issuer
Trust, to its principal office specified in Section 2.2, with a copy to the
Property Trustee. Such notice, demand or other communication to or upon the
Issuer Trust, the Property Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Issuer Trust, the Property Trustee or such Administrative
Trustee.
SECTION 10.9 Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of the
Holders that, until at least one year and one day after the Issuer Trust has
been dissolved in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If 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
Sponsor, 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
38
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Issuer Trustee or
the Issuer Trust may assert.
SECTION 10.10 Trust Indenture Act; Conflict with Trust Indenture Act.
(a) Except as otherwise expressly provided herein, the Trust
Indenture Act shall apply as a matter of contract to this Trust Agreement
for purposes of interpretation, construction and defining the rights and
obligations hereunder, and this Trust Agreement, the Sponsor, the
Depositor and the Property Trustee shall be deemed for all purposes hereof
to be subject to and governed by the Trust Indenture Act to the same
extent as would be the case if this Trust Agreement were qualified under
that Act on the date hereof. Except as otherwise expressly provided
herein, if and to the extent that any provision of this Trust Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to
317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(b) The Property Trustee shall be the only Issuer Trustee that is a
trustee for the purposes of the Trust Indenture Act.
(c) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of
the Issuer Trust.
SECTION 10.11 Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT
AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT
OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
SECTION 10.12 Counterparts.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
39
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.
THE SOUTH FINANCIAL GROUP, INC.,
as Sponsor
By:
---------------------------------
Its:
---------------------------------
[ ], as Depositor
By:
----------------------------------
Its:
-----------------------------------
[ ], as Property Trustee
By:
----------------------------------
Its:
----------------------------------
[ ], as Delaware Trustee
By:
----------------------------------
Its:
-----------------------------------
[ ], as Administrative Trustee
[ ], as Administrative Trustee
40
STATE OF )
) ss
)
COUNTY OF )
On ____________________ before me, the undersigned, a Notary Public in and
for the ____________________, personally appeared ______________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that the foregoing instrument is the free act and deed of the entity upon
behalf of which such person acted.
WITNESS my hand and official seal
SIGNATURE:
(This area for official notarial seal)
STATE OF )
) ss
)
COUNTY OF )
On ________________ before me, the undersigned, a Notary Public in and for
the _______________________, personally appeared ____________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that the foregoing instrument is the free act and deed of the entity upon
behalf of which such person acted.
WITNESS my hand and official seal
SIGNATURE:
(This area for official notarial seal)
41
STATE OF )
) ss
)
COUNTY OF )
On ________________ before me, the undersigned, a Notary Public in and for
the _______________________, personally appeared ____________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that the foregoing instrument is the free act and deed of the entity upon
behalf of which such person acted.
WITNESS my hand and official seal
SIGNATURE:
(This area for official notarial seal)
STATE OF )
) ss
)
COUNTY OF )
On ________________ before me, the undersigned, a Notary Public in and for
the _______________________, personally appeared ____________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that the foregoing instrument is the free act and deed of the entity upon
behalf of which such person acted.
WITNESS my hand and official seal
SIGNATURE:
(This area for official notarial seal)
STATE OF )
) ss
)
COUNTY OF )
On ________________ before me, the undersigned, a Notary Public in and for
the _______________________, personally appeared ____________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that the foregoing instrument is the free act and deed of the entity upon
behalf of which such person acted.
WITNESS my hand and official seal
SIGNATURE:
(This area for official notarial seal)
42
EXHIBIT A
A-1
EXHIBIT B
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE SPONSOR, A DIRECT OR
INDIRECT SUBSIDIARY OF THE SPONSOR OR AS OTHERWISE PERMITTED BY SECTION
5.10 OF THE TRUST AGREEMENT OR REQUIRED BY APPLICABLE LAW.
Certificate Number _________________ Number of Common Securities____________
Certificate Evidencing Common Securities
of TSFG Capital Trust [ ]
[ ]% Common Securities
(liquidation amount $[ ] per Common Security)
TSFG Capital Trust [ ], a statutory trust created under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that _________________
(the "Holder") is the registered owner of_______________________________
(_________________) Common Securities of the Issuer Trust representing undivided
common beneficial interests in the assets of the Issuer Trust and designated the
[___]% Common Securities (liquidation amount $[ ] per Common Security) (the
"Common Securities"). Except in accordance with the Trust Agreement (as defined
below), the Common Securities are not transferable and any attempted transfer
hereof other than in accordance therewith shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of _______, as the same may be amended from time to time
(the "Trust Agreement"), among The South Financial Group, Inc., as Sponsor,
___________, as Depositor, _________, as Property Trustee,
_____________________, as Delaware Trustee, the Administrative Trustees named
therein, and the Holders of Trust Securities, including the designation of the
terms of the Common Securities as set forth therein. The Issuer Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Issuer Trust at its principal place of business or registered
office. Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this day ______________of __________, 20___.
TSFG CAPITAL TRUST [ ]
By:
------------------------------
Name:
-------------------------
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
above mentioned Trust Agreement.
Dated:
--------------------------
-------------------------------
as Property Trustee
By:
---------------------------
Name:
----------------------
Title:
----------------------
B-1
EXHIBIT C
[FORM OF GLOBAL PREFERRED SECURITIES CERTIFICATE]
This Preferred Securities Certificate is a Book-Entry Preferred Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of a Clearing Agency or a nominee of a Clearing
Agency. This Preferred Securities Certificate is exchangeable for Preferred
Securities Certificates registered in the name of a person other than the
Clearing Agency or its nominee only in the limited circumstances described in
the Trust Agreement and may not be transferred except as a whole by the Clearing
Agency to a nominee of the Clearing Agency or by a nominee of the Clearing
Agency to the Clearing Agency or another nominee of the Clearing Agency, except
in the limited circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to TSFG Capital Trust [ ] or its agent for registration of transfer, exchange or
payment, and any Preferred Security Certificate issued is registered in the name
of Cede & Co. or such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
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 PREFERRED SECURITIES CERTIFICATE
OR ANY INTEREST HEREIN, UNLESS SUCH ACQUISITION OR HOLDING WILL NOT RESULT IN A
PROHIBITED TRANSACTION UNDER ERISA SECTION 406 OR CODE SECTION 4975, OR 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 OR U.S. DEPARTMENT
OF LABOR REGULATION SECTION 2550.401c-1, HAS COMPLIED WITH ANY REQUEST BY THE
DEPOSITOR OR THE ISSUER TRUST FOR AN OPINION OF COUNSEL OR OTHER EVIDENCE WITH
RESPECT TO THE AVAILABILITY OF SUCH EXEMPTION. ANY PURCHASER OR HOLDER OF THIS
PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT (A) IT IS NOT A PLAN OR A
PLAN ASSET ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH
"PLAN ASSETS" OF ANY PLAN, (B) ITS PURCHASE AND HOLDING OF SUCH SECURITIES WILL
NOT RESULT IN A PROHIBITED TRANSACTION UNDER ERISA SECTION 406 OR CODE SECTION
4975, OR (C) IT IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH
PURCHASE OR HOLDING.
C-1
Certificate Number Number of Preferred Securities ______ CUSIP NO.
Certificate Evidencing Preferred Securities
of TSFG Capital Trust [ ]
[ ]% Preferred Securities
(liquidation amount $[ ] per Preferred Security)
TSFG Capital Trust [___], 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 __________ (___) Preferred Securities of
the Issuer Trust representing an undivided preferred beneficial interest in the
assets of the Issuer Trust and designated the TSFG Capital Trust [___][____]%
Preferred Securities (liquidation amount $[____] per Preferred Security) (the
"Preferred Securities"). The Preferred 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 the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of __________________, as the same may be amended from
time to time (the "Trust Agreement"), among The South Financial Group, Inc., as
Sponsor, , as Depositor, ___________________, as Property Trustee,
_____________________, as Delaware Trustee, the Administrative Trustees named
therein, and the Holders of Trust Securities, including the designation of the
terms of the Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement, dated as of , (the "Guarantee
Agreement"), by and between The South Financial Group, Inc., as Guarantor, and ,
as Guarantee Trustee, to the extent provided therein. The Issuer Trust will
furnish a copy of the Issuer Trust Agreement and the Guarantee Agreement to the
Holder without charge upon written request to the Issuer Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer Trust
has executed this certificate this _________ day __________ of _______.
TSFG CAPITAL TRUST [ ]
By:
--------------------------
Name:
---------------------
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
above mentioned Trust Agreement.
Dated:
-------------------------------
-------------------------------
as Property Trustee
By:
----------------------------
Name:
--------------------------
Title:
--------------------------
C-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:________________________________________ (Insert assignee's name),
______________________________ (Insert assignee's social security or tax
identification number) ________________________________________________________
(Insert address and zip code of assignee) and irrevocably appoints
________________________________ agent to transfer this Preferred Security
Certificate on the books of the Issuer Trust. The agent may substitute another
to act for him or her.
Signature:
Date: ---------------------------
(Sign exactly as your name appears on the other side of
this Preferred 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.
C-3
[EXHIBIT D]
[FORM OF DUE ▇▇▇▇]
[In accordance with the provisions of Section [4.1(c)][4.2(f)] of the
Trust Agreement, the Issuer Trust shall pay to __________ on __________ an
amount equal to $_____________ in respect of the [Distribution][Redemption
Price] required to be paid on the date of this due ▇▇▇▇ pursuant to the Trust
Agreement.]
[IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate this ____________ day of ____________.]
[TSFG CAPITAL TRUST [__]]
[By: _____________________]
[Name: ___________________]
[Title: Administrative Trustee]
[PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
[This is one of the due bills referred to in the above mentioned Trust
Agreement.]
[Dated: __________]
[_________________________]
as Property Trustee
[By: ______________________]
[Name: ____________________]
[Title: _____________________]
D-1
[ASSIGNMENT]
[FOR VALUE RECEIVED, the undersigned assigns and transfers this due
▇▇▇▇ to: ______________ (Insert assignee's name), _______________ (Insert
assignee's social security or tax identification number)
_______________________________________________ (Insert address and zip code of
assignee) and irrevocably appoints ____________ agent to transfer this due ▇▇▇▇
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 due ▇▇▇▇.) 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-2