Exhibit 4(f)
=========================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
THE MONTANA POWER COMPANY, as Depositor
and
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
and
Xxxxxx X. Xxxxxxx, as Administrative Trustees
Dated as of November 1, 1996
MONTANA POWER CAPITAL I
=========================================================================
MONTANA POWER CAPITAL I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 8.07
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . 5.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5.07
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . 8.14
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 8.14
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 8.14
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 8.14
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8.02, 8.14
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 8.01, 8.03
(e) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5.09
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 1.06
--------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I.
Definitions and Other Provisions of General Application
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Compliance Certificates and Opinions . . . . . . . 10
Section 1.03. Form of Documents Delivered to Trustee . . . . . . 10
Section 1.04. Acts of Securityholders . . . . . . . . . . . . . . 11
Section 1.05. Notices, etc. to the Trustees and the Depositor. . 13
Section 1.06. Notice to Securityholders; Waiver . . . . . . . . . 14
Section 1.07. Conflict with Trust Indenture Act . . . . . . . . . 15
Section 1.08. Effect of Headings and Table of Contents . . . . . 15
Section 1.09. Successors . . . . . . . . . . . . . . . . . . . . 15
Section 1.10. Separability . . . . . . . . . . . . . . . . . . . 15
Section 1.11. Governing Law . . . . . . . . . . . . . . . . . . . 15
ARTICLE II.
Establishment of the Trust; Issuance of Trust Securities; Rights of
Securityholders
Section 2.01. Name . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business . . . . . . . . . . . . . . . . . . . . . 16
Section 2.03. Initial Contribution of Trust Property; Initial
Ownership; Organizational Expenses. . . . . . . . . 16
Section 2.04. Declaration of Trust; Appointment of Additional
Administrative Trustees . . . . . . . . . . . . . . 16
Section 2.05. Authorization to Enter into Certain Transactions . 17
Section 2.06. Assets of Trust . . . . . . . . . . . . . . . . . . 20
Section 2.07. Title to Trust Property . . . . . . . . . . . . . . 20
Section 2.08. Issuance of the Preferred Securities . . . . . . . 20
Section 2.09. Subscription and Purchase of Debentures; Issuance
of the Common Securities . . . . . . . . . . . . . 21
Section 2.10. Rights of Securityholders. . . . . . . . . . . . . 21
ARTICLE III.
Payment Account
Section 3.01. Payment Account . . . . . . . . . . . . . . . . . . 21
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions . . . . . . . . . . . . . . . . . . . 22
Section 4.02. Redemption . . . . . . . . . . . . . . . . . . . . 23
Section 4.03. Subordination of Common Securities . . . . . . . . 24
Section 4.04. Tax Returns and Reports . . . . . . . . . . . . . . 25
Section 4.05. Payments under Subordinated Indenture . . . . . . . 25
ARTICLE V.
Trust Securities Certificates
Section 5.01. The Trust Securities Certificates . . . . . . . . . 25
Section 5.02. Ownership of Common Securities by Depositor . . . . 26
Section 5.03. Registration of Transfer and Exchange of Preferred
Securities Certificates . . . . . . . . . . . . . . 26
Section 5.04. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . . . . 27
Section 5.05. Cancellation by Registrar . . . . . . . . . . . . . 27
Section 5.06. Persons Deemed Securityholders . . . . . . . . . . 27
Section 5.07. List of Securityholders . . . . . . . . . . . . . . 28
Section 5.08. Maintenance of Office or Agency . . . . . . . . . . 28
Section 5.09. Appointment of Paying Agent . . . . . . . . . . . . 28
Section 5.10. Book-Entry System . . . . . . . . . . . . . . . . . 29
ARTICLE VI.
Voting; Meetings; Actions to Enforce Rights
Section 6.01. Voting Rights; Limitations Thereof . . . . . . . . 29
Section 6.02. Purpose for Which Meetings May Be Called . . . . . 30
Section 6.03. Call, Notice and Place of Meetings . . . . . . . . 30
Section 6.04. Persons Entitled to Vote at Meetings . . . . . . . 31
Section 6.05. Quorum; Action . . . . . . . . . . . . . . . . . . 31
Section 6.06. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings . . . . 32
Section 6.07. Counting Votes and Recording Action of Meetings . . 33
Section 6.08. Action Without Meeting . . . . . . . . . . . . . . 33
Section 6.09. Inspection of Records . . . . . . . . . . . . . . . 33
Section 6.10. Actions to Enforce Rights. . . . . . . . . . . . . 33
ARTICLE VII.
Representations and Warranties of the Property Trustee and the Delaware
Trustee
Section 7.01. Property Trustee . . . . . . . . . . . . . . . . . 34
Section 7.02. Delaware Trustee . . . . . . . . . . . . . . . . . 35
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities . . . . . . . . 36
Section 8.02. Certain Notices . . . . . . . . . . . . . . . . . . 37
Section 8.03. Certain Rights of Property Trustee . . . . . . . . 37
Section 8.04. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . 40
Section 8.05. May Hold Securities . . . . . . . . . . . . . . . . 40
Section 8.06. Compensation; Fees; Indemnity . . . . . . . . . . . 40
Section 8.07. Certain Trustees Required; Eligibility . . . . . . 41
Section 8.08. Conflicting Interests . . . . . . . . . . . . . . . 41
Section 8.09. Co-Trustees and Separate Trustee . . . . . . . . . 41
Section 8.10. Resignation and Removal; Appointment of Successor . 43
Section 8.11. Acceptance of Appointment by Successor . . . . . . 44
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . 45
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust . . . . . . . . . . . . . . . . 45
Section 8.14. Reports by Property Trustee, Trust and Depositor . 46
Section 8.15. Number of Trustees. . . . . . . . . . . . . . . . . 46
Section 8.16. Delegation of Power. . . . . . . . . . . . . . . . 46
Section 8.17. Fiduciary Duty . . . . . . . . . . . . . . . . . . 46
ARTICLE IX.
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date . . . . . . . . . 48
Section 9.02. Early Termination . . . . . . . . . . . . . . . . . 48
Section 9.03. Termination . . . . . . . . . . . . . . . . . . . . 48
Section 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . 48
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and Assumption of
Obligations . . . . . . . . . . . . . . . . . . . . 50
Section 10.02. Limitation of Rights of Securityholders . . . . . . 50
Section 10.03. Amendment . . . . . . . . . . . . . . . . . . . . . 50
Section 10.04. Agreement Not to Petition . . . . . . . . . . . . . 52
EXHIBITS
A. Certificate of Trust . . . . . . . . . . . . . . . . . . . . A-1
B. Certificate Evidencing Common Securities . . . . . . . . . . B-1
C. Agreement as to Expenses and Liabilities . . . . . . . . . . C-1
D. Certificate Evidencing Preferred Securities . . . . . . . . . D-1
AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 1,
1996, among (i) The Montana Power Company, a Montana corporation (the
"Depositor"), (ii) The Bank of New York, a banking corporation duly
organized and existing under the laws of New York, as trustee (in such
capacity, the "Property Trustee"), (iii) The Bank of New York (Delaware), a
banking corporation duly organized and existing under the laws of Delaware,
as Delaware trustee (in such capacity, the "Delaware Trustee"), and (iv)
Xxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, and Xxxxxx X. Xxxxxxx, each an
individual, whose address is c/o The Montana Power Company, 00 Xxxx
Xxxxxxxx, Xxxxx, Xxxxxxx 00000-0000 (each, in such capacity an
"Administrative Trustee" and collectively the "Administrative Trustees")
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
being hereinafter referred to collectively as the "Trustees").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee and Xxxxx X. Xxxxxxxx, as Administrative Trustee, have heretofore
duly declared and established a business trust by the name of Montana
Power Capital I (the "Trust") pursuant to the Delaware Business Trust Act
(as hereinafter defined) by the entering into of that certain Trust
Agreement, dated as of October 15, 1996 (the "Original Trust Agreement"),
and by the execution by the Property Trustee, the Delaware Trustee and
Xxxxx X. Xxxxxxxx, as Administrative Trustee, and filing with the
Secretary of State of the State of Delaware of the Certificate of Trust,
dated October 15, 1996 (the "Certificate of Trust"), a copy of which is
attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, the Delaware
Trustee and Xxxxx X. Xxxxxxxx, as Administrative Trustee, desire to
amend and restate the Original Trust Agreement in its entirety as set
forth herein to provide for, among other things, (i) the acquisition by
the Trust from the Depositor of all of the right, title and interest in
the Debentures (as hereinafter defined), (ii) the issuance of the Common
Securities (as hereinafter defined) by the Trust to the Depositor, (iii)
the issuance of the Preferred Securities (as hereinafter defined) by
the Trust and (iv) the appointment of the additional Administrative
Trustees;
NOW THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Securityholders (as
hereinafter defined), hereby amends and restates the Original Trust
Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act," when used with respect to any Securityholder, has the
meaning specified in Section 1.04.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and for a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) paid by the Depositor
on a like principal 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 their capacities as Administrative Trustees of the Trust formed
hereunder and not in their individual capacities, 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" means, with respect to the Depositor, the
Chairman of the Board, the President, any Vice President, the Treasurer,
any Assistant Treasurer, or any other officer or agent of the Depositor
duly authorized by the Board of Directors to act in respect of matters
relating to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Bankruptcy Laws, 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
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of 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 Bankruptcy Laws, or the
consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any
substantial part of its property, or the making by 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.
"Bankruptcy Laws" has the meaning specified in Section 10.04.
"Board of Directors" means either the board of directors of the
Depositor or any committee thereof duly authorized to act in respect of
matters relating to this Trust Agreement.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the appropriate Trustee.
"Business Day" means any day other than a Saturday or a Sunday,
which is not (i) a day on which banking institutions or trust companies in
New York, New York are generally authorized or required by law, regulation
or executive order to remain closed and (ii) a day on which either the
Corporate Trust Office or the Debenture Trustee's principal corporate trust
office or the office of the Paying Agent is closed for business.
"Certificate of Trust" has the meaning specified in the preamble
to this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
"Closing Date" means November 6, 1996.
"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, if any, performing such duties at such time.
"Common Security" means an undivided beneficial interest in the
assets of the Trust having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securityholder" means the Person in whose name a Common
Security is registered in the Securities Register.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit B.
"Corporate Trust Office" means the office of the Property Trustee
at which at any particular time its corporate trust business shall be
principally administered, which office at the date of execution and
delivery of this Trust Agreement is located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
"Covered Person" means (a) any officer, director, shareholder,
partner, beneficial owner, member, representative, employee or agent of the
Trust or the Trust's Affiliates; and (b) any Securityholder.
"Debenture Event of Default" means an "Event of Default" with
respect to the Debentures under the Subordinated Indenture.
"Debenture Issuer" means The Montana Power Company, a Montana
corporation, in its capacity as issuer of the Debentures.
"Debenture Redemption Date" means "Redemption Date" as defined in
the Subordinated Indenture.
"Debenture Trustee" means The Bank of New York, as trustee under
the Subordinated Indenture, and any duly appointed successor trustee or co-
trustee thereto.
"Debentures" means $67,010,325 aggregate principal amount of
the Debenture Issuer's Junior Subordinated Deferrable Interest Debentures,
8.45% series due 2036, issued pursuant to the Subordinated Indenture.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the banking corporation identified as
the "Delaware Trustee" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Trust formed hereunder and not in
its individual capacity, or its successor in interest in such capacity, or
any successor 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 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(iii) default by the Trust in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable; or
(iv) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this
Trust Agreement (other than a covenant or warranty a default in
whose performance or breach is specifically dealt with in clause
(ii) or (iii), above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered
or certified mail, to the Property Trustee by the Holders of at
least 33% in 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
(v) the occurrence of a Bankruptcy Event with respect to
the Trust.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit C, as amended from time to time.
"Expiration Date" means December 31, 2041.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and The Bank of New York, a New York banking corporation,
as 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" has the meaning specified in the definition of
"Securityholder".
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, any officer, director, shareholder, member, partner, employee,
representative or agent of any Trustee, or any employee or agent of the
Trust or its Affiliates.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"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, as the context requires, (i) Trust
Securities having a Liquidation Amount equal to the principal amount of
Debentures at any time to be repaid, whether at stated maturity or upon
maturity by earlier acceleration, redemption or otherwise, and (ii)
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities with respect to which such Debentures are to be
distributed.
"Liquidation Amount" means the stated amount of $25 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Securityholders in connection with a termination and
liquidation of the Trust pursuant to Section 9.04(d).
"Liquidation Distribution" has the meaning specified in
Section 9.04(d).
"Officer's Certificate" means a certificate signed by an
Authorized Officer.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Depositor (but not an employee thereof) or other counsel
acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities
theretofore delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Registrar or delivered to the Registrar for cancellation;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount shall have been theretofore deposited
with the Property Trustee or any Paying Agent for the Holders of such
Preferred Securities; provided that, if such Preferred Securities are
to be redeemed, notice of such redemption shall have been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of
which other Preferred Securities have been delivered pursuant to this
Trust Agreement, including pursuant to Sections 5.03 or 5.04;
provided, however, that in determining whether the Holders of the requisite
amount of the Outstanding Preferred Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, or
whether or not a quorum is present at a meeting of Securityholders,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee (unless the Depositor, such Trustee, or
such Affiliate of the Depositor or such Trustee owns all of the Outstanding
Preferred Securities, determined without regard to this provision) shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver or
upon any such determination as to the presence of a quorum, only Preferred
Securities which such Trustee knows to be so owned shall be so disregarded;
provided, however, that Preferred Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Preferred Securities and
that the pledgee is not the Depositor or any Affiliate of the Depositor.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and initially shall be The Bank of New
York.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with The Bank of
New York, or such other banking institution as the Depositor shall select,
in its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to the
Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, designated as "8.45% Cumulative Quarterly Income
Preferred Securities, Series A", having a Liquidation Amount of $25 and
having rights provided therefor in this Trust Agreement.
"Preferred Securityholder" means a Person in whose name a
Preferred Security is registered in the Securities Register.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as
Exhibit D.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust
Agreement solely in its capacity as Property Trustee of the Trust formed
hereunder and not in its individual capacity, or its successor in interest
in such capacity, or any successor trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by Section 4.02.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions thereon to the Redemption Date.
"Registrar" shall mean the registrar for the Trust Securities
appointed pursuant to Section 2.05(a)(i)(G) and shall be initially The Bank
of New York.
"Securities Depository" shall be a Person having the
qualifications and appointed by the Depositor to perform the duties set
forth in Section 5.10. The initial Securities Depository shall be The
Depository Trust Company.
"Securities Register" shall mean the Securities Register
described in Section 5.03.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is registered in the Securities Register. Any such Person shall
be deemed to be a beneficial owner of such security within the meaning of
the Delaware Business Trust Act.
"Subordinated Indenture" means the Indenture, dated as of
November 1, 1996, between the Depositor and the Debenture Trustee, as
amended or supplemented from time to time.
"Transfer Agent" means one or more transfer agents for the Trust
Securities appointed pursuant to Section 2.05(a)(i)(G) and shall be
initially The Bank of New York.
"Trust" means Montana Power Capital I, a statutory business trust
formed under the laws of the State of Delaware, initially established under
the Original Trust Agreement and continued hereby, or any permitted
successor hereunder.
"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.
"Trust Indenture Act" means, as of any time, the Trust Indenture
Act of 1939, or any successor statute, as in effect at such time.
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for
the time being held 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.
"Trustee" means any of the Administrative Trustees, the Property
Trustee or the Delaware Trustee.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of November 1, 1996, among the Trust, the Depositor and the
underwriters named therein.
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. (a) Except
as otherwise expressly provided in this Trust Agreement, upon any
application or request by the Depositor to any Trustee to take any action
under any provision of this Trust Agreement, the Depositor shall, if
requested by such Trustee, furnish to such Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Trust
Agreement relating to the proposed action (including any covenants
compliance with which constitutes a condition precedent) have been complied
with and an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with, except that
in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Trust
Agreement relating to such particular application or request, no additional
certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Trust Agreement shall include:
(i) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
Person, such Person has made such examination or investigation as is
necessary to enable such Person to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. (a) In
any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
(b) Any Officer's Certificate may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such Officer's
Certificate are based are erroneous. Any Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Depositor stating that
the information with respect to such factual matters is in the possession
of the Depositor, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Trust Agreement, they may, but need not, be
consolidated and form one instrument.
(d) Whenever, subsequent to the receipt by any Trustee of any
Board Resolution, Officer's Certificate, Opinion of Counsel or other
document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document
or instrument may be substituted therefor in corrected form with the same
force and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or delivery
thereof, such substitute document or instrument shall be deemed to have
been executed and/or delivered as of the date or dates required with
respect to the document or instrument for which it is substituted.
Anything in this Trust Agreement to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken
by or at the request of the Depositor which could not have been taken had
the original document or instrument not contained such error or omission,
the action so taken shall not be invalidated or otherwise rendered
ineffective but shall be and remain in full force and effect, except to the
extent that such action was a result of willful misconduct or bad faith.
SECTION 1.04. ACTS OF SECURITYHOLDERS. (a) Any request,
demand, authorization, direction, notice, consent, election, waiver or
other action provided by this Trust Agreement to be made, given or taken by
Securityholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Securityholders in person or
by an agent duly appointed in writing or, alternatively, may be embodied in
and evidenced by the record of Securityholders voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Securityholders duly called and held in accordance with the provisions of
Article VI, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Administrative Trustees. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any
such agent, or of the holding by any Person of a Trust Security, shall be
sufficient for any purpose of this Trust Agreement and (subject to Section
8.01) conclusive in favor of the Administrative Trustees, if made in the
manner provided in this Section. The record of any meeting of
Securityholders shall be proved in the manner provided in Section 6.07.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof or may be proved in any other manner which the
appropriate Trustee and the Depositor deem sufficient. 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.
(c) The aggregate Liquidation Amount and serial numbers of Trust
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Securityholder 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 any Trustee or the Depositor in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
(e) Until such time as written instruments shall have been
delivered to the appropriate Trustee representing the requisite proportion
of Outstanding Trust Securities for the action contemplated by such
instruments, any such instrument executed and delivered by or on behalf of
a Securityholder may be revoked with respect to any or all of such Trust
Securities by written notice by such Securityholder or any subsequent
Securityholder, proven in the manner in which such instrument was proven.
(f) Trust Securities delivered after any Act of Securityholders
may, and shall if required by the Property Trustee, bear a notation in form
approved by the Property Trustee as to any action taken by such Act of
Securityholders. If the Depositor shall so determine, new Trust Securities
so modified as to conform, in the opinion of the Property Trustee and the
Depositor, to such action may be prepared and executed by an Administrative
Trustee on behalf of the Trust and delivered in exchange for Outstanding
Preferred Securities.
(g) If the Trustees shall solicit from Securityholders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Trustees may fix in advance a record date for the determination of
Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Trustees shall
have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may
be given before or after such record date, but only the Securityholders of
record at the close of business on the record date shall be deemed to be
Securityholders for the purposes of determining whether Securityholders of
the requisite proportion of the Outstanding Preferred Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Preferred Securities shall be computed as of the record date.
SECTION 1.05. NOTICES, ETC. TO THE TRUSTEES AND THE DEPOSITOR.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or Act of Securityholder or other document
provided or permitted by this Trust Agreement to be made upon, given or
furnished to, or filed with, any Trustee by any Holder or by the Depositor,
or the Depositor by any Trustee or by any Holder, shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered personally to the individual or an officer or other
responsible employee of the addressee, or transmitted by facsimile
transmission or other direct written electronic means to such telephone
number or other electronic communications address as the parties hereto
shall from time to time designate, or transmitted by certified or
registered mail, charges prepaid, to the applicable address set opposite
such party's name below or to such other address as either party hereto may
from time to time designate:
If to the Property Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Assistant Vice President,
Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Delaware Trustee, to:
The Bank of New York (Delaware)
Xxxxx Xxxx Center, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Assistant Vice President,
Corporate Trust Administration
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Trust or the Administrative Trustees, to:
The Montana Power Company
00 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Administrative Trustees For Montana Power Capital I
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Depositor, to:
The Montana Power Company
00 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Treasurer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally delivered, on the
date of delivery, if transmitted by facsimile transmission or other direct
written electronic means, on the date of transmission, and if transmitted
by registered mail, on the date of receipt.
SECTION 1.06. NOTICE TO SECURITYHOLDERS; WAIVER. (a) Except as
otherwise expressly provided herein, where this Trust Agreement provides
for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register, not later
than the latest date, if any, and not earlier than the earliest date, if
any, prescribed for the giving of such notice. Any notice received by any
Trustee, on behalf of the Trust in its capacity as a holder of Debentures,
shall be given to the Securityholders.
(b) In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made with the
approval of the Administrative Trustees shall constitute a sufficient
notification for every purpose hereunder. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders.
(c) Any notice required by this Trust Agreement may be waived in
writing by the Person entitled to receive such notice, either before or
after the event otherwise to be specified therein, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Administrative Trustees, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this Trust Agreement limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Trust Agreement by, or is otherwise governed by, any of the provisions of
the Trust Indenture Act, such other provision shall control; and if any
provision hereof otherwise conflicts with the Trust Indenture Act, the
Trust Indenture Act shall control.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings in this Trust Agreement and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 1.09. SUCCESSORS. This Trust Agreement shall be binding
upon and shall inure to the benefit of any successor to the Trust or any
Trustees, including any successor by operation of law.
SECTION 1.10. 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 1.11. GOVERNING LAW. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE
TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
ARTICLE II.
ESTABLISHMENT OF THE TRUST; ISSUANCE OF TRUST SECURITIES; RIGHTS OF
SECURITYHOLDERS
SECTION 2.01. NAME. The Trust created hereby shall be known as
"Montana Power Capital I," in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Delaware Trustee in the State of Delaware is
Xxxxx Xxxx Center, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, or at such other
address in Delaware as the Delaware Trustee may designate by written notice
to the Securityholders and the Depositor. The principal place of business
of the Trust is c/o The Montana Power Company, 00 Xxxx Xxxxxxxx, Xxxxx,
Xxxxxxx 00000-0000.
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; INITIAL
OWNERSHIP; ORGANIZATIONAL EXPENSES. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the Original Trust
Agreement of the sum of $10, which constituted the initial contribution of
Trust Property. Upon the formation of the Trust by such contribution and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are outstanding, the Depositor shall be the sole
beneficial owner (within the meaning of the Delaware Business Trust Act) of
the Trust. The Depositor shall pay organizational expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment of such expenses.
SECTION 2.04. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. (a) The exclusive purposes and functions of the
Trust are (i) to issue and sell Trust Securities and invest the proceeds
thereof in Debentures, (ii) to receive payments to be made with respect to
the Debentures and disburse such payments in accordance with the terms
hereof, and (iii) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees
of the Trust, to have all the rights, powers and duties to the extent set
forth herein. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes and functions of
the Trust. Anything in this Trust Agreement to the contrary
notwithstanding, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees
set forth herein. The Delaware Trustee shall be one of the Trustees of the
Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
(b) The Depositor, the Property Trustee, the Delaware Trustee
and Xxxxx X. Xxxxxxxx, as Administrative Trustee, hereby appoint Xxxxxxx
X. Xxxxxxxx and Xxxxxx X. Xxxxxxx as additional Administrative Trustees,
each of which persons by execution of this Trust Agreement accepts such
appointment.
SECTION 2.05. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section 2.05 and Article VIII and in accordance with
the following provisions (i) and (ii), the Trustees shall have the
authority to enter into all transactions and agreements determined by the
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement, and to
perform all acts in furtherance thereof, including without limitation, the
following:
(i) As among the Trustees, the Administrative Trustees, acting singly
or jointly, shall have the power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) the execution, delivery and performance of the Expense
Agreement, the Underwriting Agreement and such other agreements,
certificates and documents as may be necessary or desirable in
connection with the purposes and functions of the Trust;
(C) the qualification of the Trust to do business in any
jurisdiction as may be necessary or desirable;
(D) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(E) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(F) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all notices
and periodic and other reports and other documents pursuant to
the foregoing;
(G) the appointment of a Paying Agent, a Transfer Agent and
a Registrar in accordance with this Trust Agreement;
(H) the registration of transfers of the Trust Securities
in accordance with this Trust Agreement;
(I) the winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware in accordance with this Trust Agreement;
(J) the performance of their obligations under this Trust
Agreement; and
(K) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following ministerial matters:
(A) the establishment and maintenance of the Payment
Account;
(B) the receipt of the Debentures;
(C) the deposit of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(D) the distribution of amounts owed to the Securityholders
in respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(E) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust
Agreement;
(F) the distribution of the Trust Property in accordance
with this Trust Agreement;
(G) the winding up of the affairs of and liquidation of the
Trust and the execution of the certificate of cancellation to be
prepared and filed by the Administrative Trustees with the
Secretary of State of the State of Delaware in accordance with
this Trust Agreement;
(H) the performance of its obligations under this Trust
Agreement; and
(I) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine
is necessary or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.05(a)(ii), the Property Trustee shall have none
of the duties, powers or authority of the Administrative Trustee set forth
in Section 2.05(a)(i) or the Depositor set forth in Section 2.05(c). The
Property Trustee shall have the power and authority to exercise all of the
rights, powers and privileges of a holder of Debentures under the
Subordinated Indenture, and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders of the
Trust Securities, in its discretion proceed to protect and enforce its
rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of this Trust Agreement.
(b) Neither the Trust nor any Trustee acting on behalf of the
Trust shall undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular, the
Trustees shall not (i) acquire any investments or engage in any activities
not authorized by this Trust Agreement, (ii) sell, assign, transfer,
exchange, pledge, set-off or otherwise dispose of any of the Trust Property
or interests therein, including to Securityholders, except as expressly
provided herein, (iii) take any action that would cause the Trust to fail
or cease to qualify as a "grantor trust" for United States Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or (v) take or
consent to any action that would result in the placement of a Lien on any
of the Trust Property. The Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
(c) In connection with the issuance of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the
Closing Date are hereby ratified and confirmed in all respects):
(i) the preparation, execution and the filing by the Trust
with the Commission of a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments
thereto;
(ii) the determination of the states or jurisdictions in
which to take appropriate action to qualify or register for sale
all or part of the Preferred Securities and the performance of
any and all such acts, other than actions which must be taken by
or on behalf of the Trust, and the advising of the Trustees of
actions they must take on behalf of the Trust, and the
preparation, execution and filing of any documents to be executed
and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with
the applicable laws of any such state or jurisdiction;
(iii) the preparation, execution and the filing by the
Trust of an application to The New York Stock Exchange, any other
national stock exchange or the Nasdaq National Market for listing
upon notice of issuance of the Preferred Securities and the
filing thereafter of such notifications and documents as may be
necessary from time to time to maintain such listing;
(iv) the preparation, execution and the filing by the Trust
with the Commission of a registration statement on Form 8-A, and
any amendments thereto, relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act;
(v) the selection of the investment banker or bankers to
act as underwriters with respect to the offer and sale by the
Trust of the Preferred Securities and the negotiation of the
terms of the Underwriting Agreement providing for such offer; and
(vi) any other actions necessary or desirable to carry out
any of the foregoing activities;
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs
of the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment company" required to be registered under the
Investment Company Act, or classified other than as a "grantor trust" for
United States Federal income tax purposes and so that the Debentures will
be treated as indebtedness of the Depositor for United States Federal
income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent
with applicable law or this Trust Agreement, that each of the Depositor and
the Administrative Trustees determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not materially and
adversely affect the interests of the Holders of the Preferred Securities.
SECTION 2.06. ASSETS OF TRUST. The assets of the Trust shall
consist of the Trust Property.
SECTION 2.07. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee and shall be
held and administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
SECTION 2.08. ISSUANCE OF THE PREFERRED SECURITIES. On the
Closing Date, one of the Administrative Trustees, on behalf of the Trust,
shall execute and deliver in accordance with Section 5.01 and deliver in
accordance with the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of The Depository Trust
Company, evidencing 2,600,000 Preferred Securities having an aggregate
Liquidation Amount of $65,000,000 against receipt of the purchase price of
such Preferred Securities of $65,000,000, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee.
SECTION 2.09. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE
OF THE COMMON SECURITIES. On the Closing Date, the Administrative
Trustees, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debentures, registered in the name of the Property Trustee on
behalf of the Trust, in an aggregate principal amount of $67,010,325,
and, in satisfaction of the purchase price for such Debentures, (i) one of
the Administrative Trustees, on behalf of the Trust, shall execute and
deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, evidencing 80,413 Common Securities having an
aggregate Liquidation Amount of $2,010,325, and (ii) the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of
$65,000,000, representing the proceeds from the sale of the Preferred
Securities pursuant to the Underwriting Agreement.
SECTION 2.10. RIGHTS OF SECURITYHOLDERS. The legal title to the
Trust Property is vested exclusively in the Property Trustee in accordance
with Section 2.07, and the Securityholders shall have neither right or
title therein other than an undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities nor any right to call for any
partition or division of property, profits or rights of the Trust, except
as described below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust Agreement.
The Preferred Securities shall have no preemptive rights. When issued and
delivered to Securityholders against payment of the purchase price
therefor, they will be fully paid and nonassessable by the Trust.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The
Property Trustee and the Paying Agent shall have exclusive control of the
Payment Account. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held
in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS. (a) Distributions on the Trust
Securities shall be cumulative, and will accumulate whether or not there
are funds of the Trust available for the payment of Distributions.
Distributions shall accrue from and including November 6, 1996, and, unless
the interest payment period for the Debentures is extended pursuant to the
Subordinated Indenture, shall be payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year, commencing on December
31, 1996. If any date on which Distributions are otherwise payable on
the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a Business
Day, except that, if such Business Day is in the next succeeding calendar
year, payment of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if
made on such date (each date on which distributions are payable in
accordance with this Section 4.01(a) being herein referred to as a
"Distribution Date").
(b) Distributions payable on the Trust Securities shall be at
the fixed rate of 8.45% per annum of the Liquidation Amount of the Trust
Securities. Distributions on the Trust Securities will accrue from, and
including, the date of original issuance and will accrue to, and including
the first Distribution Date, and for each subsequent Distribution Date,
will accrue from, and excluding, the last Distribution Date through which
Distributions shall have been paid or duly provided for to, and including,
such Distribution Date. The amount of Distributions payable for any full
quarterly period shall be computed on the basis of twelve 30-day months and
a 360-day year and, for any period shorter than a full month, on the basis
of the actual number of days elapsed in such period. If the interest
payment period for the Debentures is extended pursuant to the Subordinated
Indenture, (i) Distributions on the Trust Securities will be deferred for
the period equal to the extension of the interest payment period for the
Debentures and (ii) Distributions on the Trust Securities shall be
increased by an amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such extended payment period
shall be equal to the aggregate amount of interest that accrues during any
such extended interest payment period on the Debentures. The amount of
Distributions payable for any period also shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only if the Trust has
funds immediately available in the Payment Account for the payment of such
Distributions.
(d) Subject to Section 5.10, (i) 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 on the record
date therefor, which shall be 15 days prior to such Distribution Date and
(ii) payments of Distributions in respect of the Preferred Securities shall
be made by check mailed to the address of the Person entitled thereto as
such address shall appear on the Securities Register. Payments in respect
of the Common Securities shall be made in such manner as shall be mutually
agreed between the Administrative Trustees and the Holder of the Common
Securities.
SECTION 4.02. REDEMPTION. (a) On each Debenture Redemption
Date and at the stated maturity of the Debentures, the Property Trustee
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 to be paid on the Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accrue on
and after said date.
(c) The Trust Securities to be redeemed on each Redemption Date
shall be redeemed with the proceeds from the contemporaneous redemption or
payment of Debentures. Redemptions of the Trust Securities shall be made
only if the Trust has funds immediately available in the Payment Account
for such payment.
(d) By 12:00 noon, New York time, on each Redemption Date, the
Property Trustee shall irrevocably deposit in the Payment Account
immediately available funds sufficient to pay the applicable Redemption
Price and shall give to the Paying Agent irrevocable instructions to pay
the Redemption Price to the Holders of the Trust Securities to be redeemed
on such date upon surrender of their Trust 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 on the Redemption Date all
rights of the Holders of the Trust Securities so called for redemption will
cease, except the right of such Holders to receive the Redemption Price,
but without interest thereon, and such Trust Securities will cease to be
outstanding. In the event that any Redemption Date is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on
the next succeeding day which is a Business Day, except that if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such Redemption Date. In the event that
payment of the Redemption Price in respect of any Trust Security called for
redemption is not paid either by the Trust or by the Depositor pursuant to
the Guarantee, Distributions on such Trust Security will continue to
accrue, at the then applicable rate, from the Redemption Date originally
established to the date on which such Redemption Price shall actually be
paid.
(e) Subject to Section 4.03(a), if less than all of 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 3% to the Common Securities and 97% to the Preferred
Securities. The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of less
than all of the Preferred Securities represented by a Preferred Securities
Certificate. The Property Trustee shall promptly notify the Transfer Agent
and Registrar of the Preferred Securities Certificates representing
Preferred Securities selected for redemption and, in the case of any
Preferred Securities Certificate selected for partial redemption, the
number of Preferred Securities 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 Certificates redeemed or to be redeemed
only in part, to those Preferred Securities which have been or are to be
redeemed.
SECTION 4.03. SUBORDINATION OF COMMON SECURITIES. (a) If on
any Distribution Date or Redemption Date any Event of Default resulting
from a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or of the Redemption Price of, any Common
Security shall be made.
(b) In the case of the occurrence of an Event of Default
resulting from a Debenture Event of Default, the Common Securityholder will
be deemed to have waived such Event of Default until the effect of such
Event of Default with respect to the Preferred Securities has been cured,
waived or otherwise eliminated. Until each such Event of Default with
respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders
of the Preferred Securities, and only the Holders of the Preferred
Securities will have the right to direct the Property Trustee to act.
SECTION 4.04. TAX RETURNS AND REPORTS. The Administrative
Trustees shall prepare (or cause to be prepared), at the Depositor's
expense and direction, and file all United States Federal, state and local
tax and information returns and reports required to be filed by or in
respect of the Trust. The Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the Internal Revenue Service Form
1041 (or any successor form) required to be filed in respect of the Trust
in each taxable year of the Trust and (b) prepare and furnish (or cause to
be prepared and furnished) to each Securityholder the related Internal
Revenue Service Form 1099, or any successor form or the information
required to be provided on such form. The Administrative Trustees shall
provide the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or furnishing.
The Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to
any payments to Securityholders under the Trust Securities.
SECTION 4.05. PAYMENTS UNDER SUBORDINATED INDENTURE. Any amount
payable hereunder to any Holder of Preferred Securities shall be reduced by
the amount of any corresponding payment such Holder has directly received
pursuant to Section 808 of the Subordinated Indenture. The acceptance of a
Preferred Security or any interest therein by or on behalf of a Preferred
Securityholder shall be deemed to be an acknowledgment that any Holder of
Preferred Securities that receives payment under Section 808 of the
Subordinated Indenture may receive amounts greater than the amount such
Holder may be entitled to receive pursuant to the provisions of this Trust
Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.01. THE TRUST SECURITIES CERTIFICATES. The Trust
Securities Certificates shall be issued in denominations of $25 Liquidation
Amount and integral multiples thereof. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature
of at least one Administrative Trustee and, if executed on behalf of the
Trust by facsimile signature, countersigned by the Transfer Agent or its
agent. Trust Securities Certificates bearing the signatures of individuals
who were, at the time when such signatures shall have been affixed,
Administrative Trustees of the Trust, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be Administrative Trustees
prior to the delivery of such Trust Securities Certificates. Certificates
evidencing Trust Securities may be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by the execution thereof by
the Administrative Trustees, or any one of them, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements as the Administrative Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation of any
stock exchange on which the Preferred Securities may be listed, or to
conform to usage.
SECTION 5.02. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On
the Closing Date, the Depositor shall acquire, and thereafter retain,
beneficial and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in connection with
a merger or consolidation of the Depositor pursuant to Section 1101 of the
Subordinated Indenture) shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor to contain
a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.03. REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED
SECURITIES CERTIFICATES. (a) The Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a
Securities Register in which, subject to such reasonable regulations as it
may prescribe, the Registrar shall provide for the registration of
Preferred Securities Certificates and the registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The
Bank of New York shall be the initial Registrar. The Securities Register
shall be open for inspection by the Administrative Trustees and the
Depositor at all reasonable times.
(b) Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to
Section 5.08, any one of the Administrative Trustees, on behalf of the
Trust, shall execute by manual or facsimile signature, cause the Transfer
Agent or its agent to countersign (if executed on behalf of the Trust by
facsimile signature) and deliver (or cause the Transfer Agent to 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. At the option of a Holder, any Preferred
Securities Certificate may be exchanged for one or more new Preferred
Securities Certificates in authorized denominations 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
5.08.
(c) Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied
by a written instrument of transfer in form satisfactory to the
Administrative Trustees and the Transfer Agent duly executed by the Holder
or such Holder's attorney duly authorized in writing. The Trust shall not
be required to (i) issue, register the transfer of, or exchange any
Preferred Securities Certificate during a period beginning at the opening
of business 15 calendar days before the day of mailing of a notice of
redemption of any Preferred Securities called for redemption and ending at
the close of business on the day of such mailing or (ii) register the
transfer of or exchange any Preferred Securities Certificate so selected
for redemption, in whole or in part, except the unredeemed portion of any
such Preferred Securities Certificate being redeemed in part.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Transfer
Agent 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 5.04. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES. If any mutilated Trust Securities Certificate
shall be surrendered to the Transfer Agent, the Administrative Trustees or
any one of them shall execute by manual or facsimile signature, cause the
Transfer Agent to countersign and deliver (or cause the Transfer Agent to
deliver), in exchange for such mutilated Trust Security Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. If (i)
the Transfer Agent shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate and (ii)
there shall be delivered to the Transfer Agent and the Administrative
Trustees such security or indemnity as may be required by them to save each
of them and the Depositor harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide
purchaser, any one of the Administrative Trustees, on behalf of the Trust,
shall execute by manual or facsimile signature, cause the Transfer Agent to
countersign (if executed on behalf of the Trust by facsimile signature) and
deliver (or cause the Transfer Agent to deliver), in exchange for or in
lieu of any such destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under
this Section, the Administrative Trustees or the Transfer Agent 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 ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.05. CANCELLATION BY REGISTRAR. All Trust Securities
Certificates surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Registrar,
be delivered to the Registrar and, if not theretofore canceled, shall be
promptly canceled by the Registrar. No Trust Securities Certificates shall
be issued in lieu of or in exchange for any Trust Securities Certificates
canceled as provided in this Section, except as expressly permitted by this
Trust Agreement. All canceled Trust Securities Certificates held by the
Registrar shall be disposed of in accordance with customary practices.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Preferred Securities Certificate for registration of
transfer, the Trustees and the Registrar shall be entitled to treat the
Person in whose name any Preferred Securities Certificate shall be
registered in the Securities Register as the Holder of such Preferred
Securities Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustee nor the Registrar
shall be bound by any notice to the contrary.
SECTION 5.07. LIST OF SECURITYHOLDERS. Semiannually, not later
than June 1 and December 1 in each year, commencing June 1, 1997, and at
such other times as the Property Trustee may request in writing, the
Depositor or the Administrative Trustees shall furnish or cause to be
furnished to the Property Trustee information as to the names and addresses
of the Holders, and the Property Trustee shall preserve such information
and similar information received by it in any other capacity and afford to
the Holders access to information so preserved by it, all to such extent,
if any, and in such manner as shall be required by the Trust Indenture Act;
provided, however, that no such list need be furnished so long as the
Property Trustee shall be the Registrar.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The
Administrative Trustees shall maintain in the Borough of Manhattan, The
City of New York, an office or offices or agency or agencies where
Preferred Securities Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Trustees
in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate The Bank of New York, 000
Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000 at its principal
corporate trust office for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or
any such office or agency.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying Agent
shall make Distributions to Securityholders from the Payment Account and
shall report the amounts of such Distributions to the Administrative
Trustees and the Property Trustee. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions. The Property Trustee shall be entitled to
rely upon a certificate of the Paying Agent stating in effect the amount of
such funds so to be withdrawn and that same are to be applied by the Paying
Agent in accordance with this Section 5.09. The Administrative Trustees or
any one of them may revoke such power and remove the Paying Agent in their
or its sole discretion. The Paying Agent shall initially be The Bank of
New York, and it may choose any co-Paying Agent that is acceptable to the
Administrative Trustees and the Depositor. Any Paying Agent may resign
upon 30 days' written notice to the Administrative Trustees and the
Depositor. In the event that The Bank of New York shall no longer be the
Paying Agent, the Administrative Trustees or any one of them shall appoint
a successor (which shall be a bank or trust company) that is acceptable to
the Property Trustee and the Depositor to act as Paying Agent. The
Administrative Trustees or any one of them shall cause such successor
Paying Agent or any co-Paying Agent appointed to execute and deliver to the
Trustees an instrument in which such Paying Agent shall agree with the
Trustees that such Paying Agent will hold all sums, if any, held by it for
payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. Each Paying Agent shall return all unclaimed funds to the
Property Trustee, and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all other funds in its possession to the
Property Trustee. The provisions of Sections 8.01 through 8.06 shall apply
to each Paying Agent appointed hereunder.
SECTION 5.10. BOOK-ENTRY SYSTEM. (a) The Administrative
Trustees, at the direction and expense of the Depositor, may from time to
time appoint a Securities Depository or a successor thereto and enter into
a letter of representations or other agreement with such Securities
Depository to establish procedures with respect to the Preferred
Securities. Any Securities Depository shall be a Clearing Agency.
(b) The Depositor and the Trustees covenant and agree to meet
the requirements of a Securities Depository for the Preferred Securities
with respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred
Securities, including the establishment of record dates for voting
purposes.
(c) Whenever the beneficial ownership of any Preferred
Securities is determined through the books of a Securities Depository, the
requirements in this Trust Agreement of holding, delivering or
transferring, and making payments in respect of, such Preferred Securities
shall be deemed modified with respect to such Preferred Securities to meet
the requirements of the Securities Depository with respect to actions of
the Trustees, the Depositor and the Paying Agent. Any provisions hereof
permitting or requiring delivery of such Preferred Securities shall, while
such Preferred Securities are in a book-entry system, be satisfied by the
notation on the books of the Securities Depository in accordance with
applicable state law.
(d) After a Debenture Event of Default, the Holders of a
majority in Liquidation Preference of the Preferred Securities may
determine to discontinue the use of the book-entry system for the Preferred
Securities.
ARTICLE VI.
VOTING; MEETINGS; ACTIONS TO ENFORCE RIGHTS
SECTION 6.01. VOTING RIGHTS; LIMITATIONS THEREOF. (a)
Securityholders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
(b) Except as provided in this Section 6.01, Section 10.03 and
as otherwise required by law, no Holder of Preferred Securities shall have
any right to vote or in any manner otherwise control the administration,
operation and management of the Trust or the obligations of the parties
hereto, nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(c) So long as any of the Debentures are held by the Property
Trustee, the Property Trustee shall not (i) direct the time, method and
place of conducting any proceeding for, or taking any other action relating
to, any remedy available to the Debenture Trustee, or executing any trust
or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 813
of the Subordinated 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 Subordinated Indenture or the Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the
Holders of at least 33% in aggregate Liquidation Amount of the Outstanding
Preferred Securities; provided, however, that where a consent under the
Subordinated 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 Preferred Securities, except
pursuant to a subsequent vote of the Preferred Securities. The Property
Trustee shall notify all Holders of the Preferred Securities of any notice
of default received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of the
Preferred Securities, prior to taking any of the foregoing actions, the
Property Trustee shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the contemplated
action will not cause the Trust to fail to be classified as a "grantor
trust" for United States Federal income tax purposes on account of such
action.
SECTION 6.02. PURPOSE FOR WHICH MEETINGS MAY BE CALLED. A
meeting of Securityholders of one or more, or all, series may be called at
any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Trust Agreement to be made, given or taken
by Securityholders. No annual meeting of Securityholders is required to be
held.
SECTION 6.03. CALL, NOTICE AND PLACE OF MEETINGS. (a) The
Administrative Trustees may at any time call a meeting of Securityholders
for any purpose specified in Section 6.02, to be held at such time and at
such place in the Borough of Manhattan, The City of New York, or any other
place, as the Administrative Trustees shall determine. Notice of every
such meeting, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1.06, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) If the Administrative Trustees shall have been requested to
call a meeting of the Securityholders by the Common Securityholder or by
the Holders of 33% in aggregate Liquidation Amount of Preferred Securities
for any purpose specified in Section 6.02, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and
the Administrative Trustees shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Common
Securityholder or the Holders of Preferred Securities of the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in such other place as shall
be determined or approved by the Administrative Trustees, for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
(c) Any meeting of Securityholders shall be valid without notice
if the Holders of all Outstanding Trust Securities are present in person or
by proxy and the Administrative Trustees are present, or if notice is
waived in writing before or after the meeting by the Holders of all
Outstanding Trust Securities, or by such of them as are not present at the
meeting in person or by proxy, and by the Administrative Trustees.
SECTION 6.04. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Securityholders a Person shall be (a)
subject to Section 5.10(b) hereof, a Holder of one or more Outstanding
Preferred Securities, or (b) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Preferred Securities by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Securityholders shall be the
Persons entitled to vote at such meeting and their counsel, the
Administrative Trustees, any representatives of the Property Trustee
and its counsel and any representatives of the Depositor and its counsel.
SECTION 6.05. QUORUM; ACTION. (a) The Persons entitled to vote
a majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities shall constitute a quorum for a meeting of Securityholders;
provided, however, that if any action is to be taken at such meeting which
this Trust Agreement expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities, the Persons
entitled to vote such specified percentage in Liquidation Amount of the
Outstanding Preferred Securities shall constitute a quorum. In the absence
of a quorum within one hour of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Preferred
Securities, be dissolved. In any other case the meeting may be adjourned
for such period as may be determined by the chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for such
period as may be determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Except as provided by Section
6.06(e), notice of the reconvening of any meeting adjourned for more than
30 days shall be given as provided in Section 6.03(a) not less than 10 days
prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the aggregate Liquidation Amount of the
Outstanding Preferred Securities which shall constitute a quorum.
(b) Except as limited by Section 10.03, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in aggregate Liquidation Amount of the Outstanding
Preferred Securities; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly
provides may be taken by the Holders of a specified percentage, which is
less than a majority, in aggregate Liquidation Amount of the Outstanding
Preferred Securities, may be adopted at a meeting or an adjourned meeting
duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
Liquidation Amount of the Outstanding Preferred Securities.
(c) Any resolution passed or decision taken at any meeting of
Securityholders duly held in accordance with this Section shall be binding
on all Securityholders, whether or not present or represented at the
meeting.
SECTION 6.06. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS. (a) Attendance at meetings
of Securityholders may be in person or by proxy; and, to the extent
permitted by law, any such proxy shall remain in effect and be binding upon
any future Holder of the Trust Securities with respect to which it was
given unless and until specifically revoked by the Holder or future Holder
of such Securities before being voted (except as provided in Section
104(g)).
(b) Notwithstanding any other provisions of this Trust
Agreement, the Administrative Trustees may make such reasonable regulations
as they may deem advisable for any meeting of Securityholders in regard to
proof of the holding of such Preferred Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence
of the right to vote and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Trust Securities and the
appointment of any proxy shall be proved in the manner specified in Section
1.04. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without
the proof specified in Section 1.04 or other proof.
(c) The Administrative Trustees shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Common Securityholder or by Preferred
Securityholders as provided in Section 6.03, in which case the Common
Securityholder or the Preferred Securityholders calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities represented at
the meeting.
(d) No vote shall be cast or counted at any meeting in respect
of any Preferred Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Trust Security or
proxy.
(e) Any meeting duly called pursuant to Section 6.03 at which a
quorum is present may be adjourned from time to time by Persons entitled to
vote a majority in aggregate Liquidation Amount of the Outstanding
Preferred Securities; and the meeting may be held as so adjourned without
further notice.
SECTION 6.07. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Securityholders
shall be by written ballots on which shall be subscribed the signatures of
the Securityholders or of their representatives by proxy and the
Liquidation Amounts and serial numbers of the Outstanding Trust Securities
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports of all votes cast
at the meeting. A record of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section
6.03. Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy shall be
delivered to the Depositor, and another to the Property Trustee to be
preserved by the Property Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 6.08. ACTION WITHOUT MEETING. In lieu of a vote of
Securityholders at a meeting as hereinbefore contemplated in this Article,
any request, demand, authorization, direction, notice, consent, waiver or
other action may be made, given or taken by Securityholders by written
instruments as provided in Section 1.04.
SECTION 6.09. INSPECTION OF RECORDS. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to
the Administrative Trustees and the Property Trustee, the records of the
Trust shall be open to inspection by any Securityholder during normal
business hours for any purpose reasonably related to such Securityholder's
interest as a Securityholder.
SECTION 6.10. ACTIONS TO ENFORCE RIGHTS. (a) If the Property
Trustee should fail to enforce its rights against the Depositor under the
Debentures or this Trust Agreement, a Holder of Preferred Securities may
institute a legal proceeding, to the fullest extent permitted by law,
directly against the Depositor to enforce the Property Trustee's rights
under the Debentures or this Trust Agreement, without first instituting any
legal proceeding against the Property Trustee or any other person. A
Holder of Preferred Securities also may directly institute a proceeding for
enforcement of payment to such Holder directly of principal of or interest
on the Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities of such Holder on or after
the due dates specified in the Debentures. In connection with any such
proceeding, the Depositor will be subrogated to the rights of any Holder of
Preferred Securities to the extent of any payment made by the Depositor to
such Holder.
(b) 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 33% in principal amount of the outstanding
Debentures fail, to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 33% in Liquidation
Amount of the Preferred Securities then Outstanding shall have such right
by a notice in writing to the Depositor and the Debenture 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.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(i) the Property Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of New York;
(ii) 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;
(iii) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(iv) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with or
constitute a breach of the Property Trustee's charter or by-laws; and
(v) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Property Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal or New York law governing the banking
or trust powers of the Property Trustee.
SECTION 7.02. DELAWARE TRUSTEE. The Delaware Trustee represents
and warrants for the benefit of the Depositor and the Securityholders that:
(i) the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing under the
laws of the State of Delaware;
(ii) 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;
(iii) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid and legally
binding agreement of the Delaware Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(iv) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate the Delaware Trustee's
charter or by-laws; and
(v) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of the
transactions by the Delaware Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with or
the taking of any other action with respect to any governmental authority
or agency under any existing Federal or Delaware law governing the banking
or trust powers of the Delaware Trustee.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) The
duties and responsibilities of the Trustees shall be restricted to those
set forth in the express provisions of this Trust Agreement and, in the
case of the Property Trustee, as provided in the Trust Indenture Act, and
no implied covenants or obligations shall be read into this Trust Agreement
against any of the Trustees. No provision of this Trust Agreement shall
require any of the Trustees to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it 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. Notwithstanding anything contained in this Trust Agreement to the
contrary, the duties and responsibilities of the Property Trustee under
this Trust Agreement shall be subject to the protections, exculpations and
limitations on liability afforded to the Property Trustee under this Trust
Agreement, the Trust Indenture Act, the Delaware Business Trust Act and, to
the extent applicable, Rule 3a-7 under the Investment Company Act, or any
successor rule thereunder. Whether or not therein expressly so provided,
every provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Trustees shall be
subject to the provisions of this Section.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that there shall be
sufficient income or proceeds from the Trust Property to enable the
Property Trustee or Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it will look solely to the income and proceeds from the Trust
Property to the extent available for distribution to it as herein provided
and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.
(c) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust
Property 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, the
Trust Indenture Act, the Delaware Business Trust Act and, to the
extent applicable, Rule 3a-7 under the Investment Company Act;
(ii) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Trust Property or the payment of any taxes or
assessments levied thereon or in connection therewith;
(iii) 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. Money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account established by the Property
Trustee pursuant to this Trust Agreement and except to the extent
otherwise required by law; and
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrative Trustees or the
Depositor.
(d) No Administrative Trustee shall be liable for any act or
omission to act hereunder, except for his or her own gross negligence or
willful misconduct.
SECTION 8.02. CERTAIN NOTICES. (a) Within five Business Days
after the occurrence of any Event of Default known to the Property Trustee,
the Property Trustee shall give notice of such Event of Default to the
Securityholders in the manner and to the extent provided in Section 1.06,
unless such Event of Default shall have been cured or waived; provided,
however, that in the case of any default of the character specified in
clause (iv) of the definition of Event of Default, no such notice to
Holders shall be given until at least 45 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would become, an Event of
Default.
(b) Within Five Business Days after receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, an Administrative
Trustee shall transmit, in the manner and to the extent provided in
Sections 1.05 and 1.06, notice of such exercise to the Securityholders and
the Property Trustee.
SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to
the provisions of Section 8.01 and to the applicable provisions of the
Trust Indenture Act:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) any request or direction of the Depositor mentioned
herein shall be sufficiently evidenced by a written request or
order signed with the name of the Depositor by an Authorized
Officer and delivered to the Property Trustee, or as otherwise
expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(iii) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Property Trustee (unless other
evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate;
(iv) the Property Trustee may consult with counsel, and the
written advice of such counsel or any Opinion of 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;
(v) 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 Securityholder
pursuant to this Trust Agreement, unless such Securityholder
shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(vi) 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, direction, consent, order, bond, debenture, note or
other evidence of indebtedness or other paper or document, but
the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit, and, if the Property Trustee shall determine to make such
further inquiry or investigation, it shall (subject to applicable
legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Depositor,
personally or by agent or attorney;
(vii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the Property
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by
it hereunder;
(viii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Trust Agreement, except for any such action taken, suffered or
omitted to be taken due to the gross negligence or willful
misconduct of the Property Trustee;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with respect to the
Trust Securities unless either (A) a responsible officer of the
Property Trustee shall have actual knowledge of the default or
Event of Default or (B) written notice of such default or Event
of Default shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Securityholder;
(x) no provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall
be illegal, or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or
obligation; and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
(xi) 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 securities) (or
any rerecording, refiling or reregistration thereof);
(xii) 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; and
(xiii) 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 (a) may
request instructions from the Securityholders, which instructions
may only be given by the Holders of the same amount of the Trust
Securities as would be entitled to direct the Property Trustee
under the terms of this Trust Agreement in respect of such
remedies, rights or actions, (b) may refrain from enforcing such
remedy or right or taking such other action until such
instructions are received, and (c) shall be protected in acting
in accordance with such instructions.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Trust, and the
Trustees do not assume any responsibility for their correctness. The
Trustees make no representations as to the title to, or value or condition
of, the property of the Trust or any part thereof, nor as to the validity
or sufficiency of this Trust Agreement or the Trust Securities. The
Trustees shall not be accountable for the use or application by the Trust
of the proceeds of the sale of the Trust Securities in accordance with
Section 2.09.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any agent of
any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections
8.08 and 8.13, may otherwise deal with the Trust with the same rights it
would have if it were not a Trustee or such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY. (a) The Depositor
shall:
(i) pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein, reimburse
the Trustees upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Trustees in accordance
with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except to the extent that any such expense, disbursement or
advance as may be attributable to its negligence (gross negligence, in
the case of any Administrative Trustee), bad faith or willful
misconduct; and
(iii) indemnify each Trustee for, and to hold each Trustee
harmless against, any and all loss, damage, claims, liability or
expense incurred by it, arising out of or in connection with the
acceptance or administration of this Trust Agreement, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent that any such
expense, disbursement or advance as may be attributable to its
negligence (gross negligence, in the case of any Administrative
Trustee), bad faith or willful misconduct; and
(b) As security for the performance of the obligations of the
Depositor under this Section, each of the Trustees shall have a lien prior
to the Trust Securities upon all property and funds held or collected by
such Trustee as such, except funds held in trust for the payment of
Distributions on the Trust Securities.
(c) In addition to the rights provided to each Trustee pursuant
to the provisions of the paragraph (b) of this Section 806, when a Trustee
incurs expenses or renders services in connection with an Event of Default
resulting from a Bankruptcy Event with respect to the Trust, the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency
or other similar law.
(d) The provisions of this Section shall survive the termination
of this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY. (a) There
shall at all times be a Property Trustee hereunder with respect to the
Trust Securities. The Property Trustee shall be a Person that has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article
VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more persons
authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with respect
to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State
of Delaware or (ii) a legal entity with its principal place of business in
the State of Delaware that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons authorized to
bind such entity.
SECTION 8.08. CONFLICTING INTERESTS. If the Property Trustee
shall have or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the effect, and
subject to the conditions, provided in the Trust Indenture Act and this
Trust Agreement. The Subordinated Indenture and the Guarantee Agreement
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 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE. (a) Unless an
Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Property Trustee
shall have power to appoint, and upon the written request of the Property
Trustee or the Holders of at least 33% of the aggregate Liquidation Amount
of Outstanding Preferred Securities, the Depositor shall for such purpose
join with the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint, one or
more Persons approved by the Property Trustee either to act as co-trustee,
jointly with the Property Trustee, of all or any part of such Trust
Property, or to act as separate trustee of any such 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 the Depositor does not join in
such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment.
(b) Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall, on request, be
executed, acknowledged, and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed and delivered
and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with,
the Trustees designated for such purpose hereunder, shall be
exercised, solely by such Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property Trustee
or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such Act, in which event
such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument
in writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 8.09, and, in
case a Debenture Event of Default has occurred and is continuing,
the Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor. Upon the written request of
the Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or
separate trustee so resigned or removed may be appointed in the
manner provided in this Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the
Trustee, or any other such trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee
and separate trustee.
SECTION 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of any Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
requirements of Section 8.11.
(b) Any Trustee may resign at any time with respect to the Trust
Securities by giving written notice thereof to the Securityholders. If the
instrument of acceptance by a successor Trustee required by Section 8.11
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Trust Securities.
(c) Unless an Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If an Event of Default shall have occurred and be
continuing, any Trustee may be removed at such time by Act of the Holders
of a majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities, delivered to such Trustee (in its individual capacity and on
behalf of the Trust).
(d) If a Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Event of Default shall have
occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to such Trustee, shall promptly appoint a
successor Trustee, and the Trustee so succeeded shall comply with the
applicable requirements of Section 8.11. If any Trustee shall resign, be
removed or become incapable of continuing to act as Trustee at a time when
an Event of Default shall have occurred and be continuing, the Preferred
Securityholders, by Act of the Holders of a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities delivered to
such Trustee, shall promptly appoint a successor Trustee, and the Trustee
so succeeded shall comply with the applicable requirements of Section 8.11.
If no successor Trustee shall have been so appointed by the Securityholders
and accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder for at least six months may,
on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(e) A retiring Trustee shall give notice thereof and of the
appointment of its successor Trustee to all Securityholders in the manner
provided in Section 1.06 and shall give notice to the Depositor. Each
notice shall include the name and address of the successor Trustee with
respect to the Trust Securities and the Trust and, in the case of the
Property Trustee, the address of its Corporate Trust Office.
(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, (i) in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies or becomes incompetent or
incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (A) the unanimous act of remaining
Administrative Trustees if there are at least two of them or (B) otherwise
by the Depositor (with the successor in each case being an individual or a
corporation which satisfies the eligibility requirement for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in Section
8.07); and (ii), in the event the Depositor reasonably believes that any
Administrative Trustee who is a natural person has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may
terminate the status of such person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the preceding
clause).
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In
case of the appointment hereunder of a successor Trustee, the successor
Trustee shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and the successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Depositor or the successor
Trustee, the retiring Trustee shall, upon payment of its expenses by the
Depositor, execute and deliver an instrument transferring to the successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to the successor Trustee all property and
money held by the retiring Trustee hereunder, subject, nevertheless, to the
retiring Trustee's prior lien provided for in Section 8.06.
(b) In case of the appointment hereunder of a successor Trustee,
the retiring Trustee and the successor Trustee shall execute and deliver an
amendment hereto wherein the successor Trustee shall accept such
appointment and which shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, the successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee.
(c) Upon request of any successor Trustee, the retiring Trustee
shall execute any and all instruments for more fully and certainly vesting
in and confirming to the successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance the successor Trustee shall be qualified and
eligible under this Article VIII.
SECTION 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person into which the Property Trustee or the Delaware
Trustee or any Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any Person resulting
from any merger, conversion or consolidation to which such Trustee shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of such Trustee, shall be the successor of such Trustee
hereunder, provided such Person shall be otherwise qualified and eligible
under this Article VIII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR TRUST. If the Property Trustee shall be or become a creditor
of the Trust, the Depositor or any other obligor upon the Trust Securities
or the Debentures (other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Property Trustee shall be
subject to any and all applicable provisions of the Trust Indenture Act
regarding the collection of claims against the Trust, the Depositor or such
other obligor. For purposes of Section 311(b) of the Trust Indenture Act:
(a) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(b) the term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Depositor for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Depositor arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
SECTION 8.14. REPORTS BY PROPERTY TRUSTEE, TRUST AND DEPOSITOR.
Not later than July 31 in each year, commencing July 31, 1997, the Property
Trustee shall transmit to the Holders and the Commission a report, dated as
of the next preceding May 31 with respect to any events and other matters
described in Section 313(a) of the Trust Indenture Act, in such manner and
to the extent required by the Trust Indenture Act. The Property Trustee
shall transmit to the Holders and the Commission, and the Depositor and the
Administrative Trustees, on behalf of the Trust, shall file with the
Property Trustee (within 30 days after filing with the Commission in the
case of reports which pursuant to the Trust Indenture Act must be filed
with the Commission and furnished to the Property Trustee) and transmit to
the Holders, such other information, reports and other documents, if any,
at such times and in such manner, as shall be required by the Trust
Indenture Act.
SECTION 8.15. NUMBER OF TRUSTEES. (a) The number of Trustees
shall be five, provided that the Depositor, by written instrument, may
increase or decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to this Section
8.15, or if the number of Trustees is increased pursuant to this Section
8.15, the vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.16. 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 2.05(a),
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and the
execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth
herein.
SECTION 8.17. FIDUCIARY DUTY. (a) To the extent that, at law
or in equity, an Indemnified Person has duties (including fiduciary duties)
and liabilities relating thereto to the Trust or to any other Covered
Person, an Indemnified Person acting under this Trust Agreement shall not
be liable to the Trust or to any other Covered Person for its 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 an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein, and subject to
the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and the Trust or any Covered
Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Securityholder, the Indemnified
Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary or accepted
industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith
by the Indemnified Person, the resolution, action or terms so
made, taken or provided by the Indemnified Person shall not
constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) Unless otherwise expressly provided herein, and subject to
the provisions of the Trust Indenture Act, whenever in this Trust Agreement
an Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider
such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust
or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and,
to the extent permitted by applicable law, shall not be subject
to any other or different standard.
ARTICLE IX.
TERMINATION AND LIQUIDATION
SECTION 9.01. TERMINATION UPON EXPIRATION DATE. The Trust shall
automatically terminate on the Expiration Date, if not terminated prior to
such date pursuant to Section 9.02, and, thereupon, the Property Trustee
shall liquidate the Trust in accordance with Section 9.04.
SECTION 9.02. EARLY TERMINATION. Upon the first to occur of
(such first occurrence an "Early Termination Event"):
(i) a Bankruptcy Event or the dissolution or liquidation of
the Depositor;
(ii) the redemption of all of the Preferred Securities;
(iii) the receipt by the Property Trustee of a written
direction from the Depositor to terminate the Trust (which
direction may be given at any time and is wholly within the
discretion of the Depositor); and
(iv) the entrance by a court of competent jurisdiction of an
order for judicial termination of the Trust;
the Trust shall terminate and the Property Trustee shall liquidate the
Trust in accordance with Section 9.04.
SECTION 9.03. TERMINATION. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall
terminate upon the latest to occur of the following: (i) the distribution
by the Property Trustee to Securityholders of (A) Debentures upon the
liquidation of the Trust pursuant to Section 9.04, or (B) of all amounts
required to be distributed hereunder upon the final payment of the Trust
Securities upon the redemption of all of the Trust Securities pursuant to
Section 4.02; (ii) the payment of all amounts due to creditors of the
Trust; and (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. LIQUIDATION. (a) If an Early Termination Event
specified in clause (i), (iii) or (iv) of Section 9.02 shall occur, subject
to Section 9.04(d), after satisfaction of all amounts due to creditors of
the Trust, the Trust shall be liquidated by the Property Trustee by
promptly distributing to each Securityholder a Like Amount of Debentures.
Notice of liquidation shall be given by the Administrative Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than
60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be outstanding and
any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Debentures, or, in the case of a liquidation
under Section 9.04(d), receive a Liquidation Distribution, as the
Property Trustee shall deem appropriate.
(b) In order to effect the distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the outstanding Trust Securities Certificates.
(c) 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 Trust Securities certificates to the
Property Trustee or its agent for exchange, (iii) the Depositor shall use
best efforts to have the Debentures listed on The New York Stock Exchange
or on such other stock exchange or other organization as the Preferred
Securities are then listed or traded, (iv) any Trust Securities Certificate
not so surrendered for exchange will be deemed to represent a Like Amount
of Debentures, accruing interest at the rate provided for in the Debentures
from the last Distribution Date on which a Distribution was made on such
Trust Securities Certificate until such Certificate shall be so surrendered
(and until such Certificate shall be so surrendered, no payments of
interest and principal received by the Property Trust with respect to a
Like Amount of Debentures represented by such Certificate will be made to
the Holder of such Certificate), and (v) all rights of Securityholders will
cease, except the right to receive Debentures and payments of interest and
principal received by the Trustee with respect to the Debentures
represented by Trust Securities Certificates not surrendered for exchange
upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for termination 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, the Trust Property shall be liquidated, and
the Trust shall be dissolved, woundup or terminated, by the Property
Trustee in such manner as the Property Trustee shall determine. In such
event, on the date of the dissolution, windingup or other termination of
the Trust, Securityholders will be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after satisfaction
of all amounts due to creditors of the Trust, 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 Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation
Amounts); provided, however, that if an Event of Default has occurred and
is continuing or if an Event of Default has not occurred solely by reason
of a requirement that time lapse or notice be given, the Liquidation
Distribution with respect to the Preferred Securities shall be made in full
prior to the making of any distribution with respect to the Common
Securities.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.01. GUARANTEE BY THE DEPOSITOR AND ASSUMPTION OF
OBLIGATIONS. Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust
is now or hereafter becomes indebted or liable (the "Beneficiaries"), and
agrees to assume liability for, the full payment, when and as due, of any
and all Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or liabilities
of the Trust, other than (i) obligations of the Trust to pay to Holders the
amounts due such Holders pursuant to the terms of the Trust Securities.
This guarantee and assumption is intended to be for the benefit of, and to
be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
SECTION 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The
death or incapacity of any person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or
any Securityholder for such person, to claim an accounting, take any action
or bring any proceeding in 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 10.03. AMENDMENT. (a) This Trust Agreement may be
amended from time to time by a majority of the Administrative Trustees and
the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein or therein which may
be inconsistent with any other provision herein or therein, or to make any
other provisions with respect to matters or questions arising under this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the
Trust will not be classified for United States Federal income tax purposes
other than as a "grantor trust" at any time that any Trust Securities are
outstanding or to ensure the Trust's exemption from the status of an
"investment company" under the Investment Company Act or (iii) to effect
the acceptance of a successor Trustee's appointment; provided, however,
that, except in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any Securityholder and, in
the case of clause (i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c), any provision of
this Trust Agreement may be amended by a majority of the Administrative
Trustees and the Depositor with the consent of a majority of the aggregate
Liquidation Amount of Trust Securities then outstanding and receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from status of
an "investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder
(such consent being obtained in accordance with Article VI), this Trust
Agreement may not be amended to (i) reduce the Liquidation Amount of any
Trust Security, (ii) 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, (iii) restrict the right of a Securityholder to institute
suit for the enforcement of any such payment on or after such date, (iv)
reduce the percentage in Liquidation Amount of the Outstanding Preferred
Securities, the consent of whose Holder is required for any amendment of
this Trust Agreement or any waiver of compliance with any provision of this
Trust Agreement and any default hereunder and its consequences, or (v)
change the provisions of this subsection.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for
the exemption from status of an "investment company" under the Investment
Company Act, afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the affected party, this Trust Agreement
may not be amended in a manner which imposes any additional obligation on
the Depositor or any Trustee.
(f) In the event that there shall be any amendment to this Trust
Agreement the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) The Trustees are entitled to receive an Opinion of Counsel
as conclusive evidence that any amendment to this Trust Agreement executed
pursuant to this Section 10.03 is authorized or permitted by, and conforms
to, the terms of this Section 10.03, has been duly authorized by and
lawfully executed and delivered on behalf of the other requisite parties,
that it is proper for the Trustees under the provisions of this Section
10.03 to join in the execution thereof, and that such amendment or the
exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes.
SECTION 10.04. AGREEMENT NOT TO PETITION. Each of the Trustees
and the Depositor agrees for the benefit of the Securityholders that, until
at least one year and one day after the Trust has been terminated in
accordance with Article IX, it shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, reorganization,
arrangement, insolvency, liquidation or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.04, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer
with the bankruptcy court or otherwise properly contest the filing of such
petition by the Depositor against the Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing not
to take such action and should be stopped and precluded therefrom and such
other defenses, if any, as counsel for the Property Trustee or the Trust
may assert. The provisions of this Section 10.04 shall survive the
termination of this Trust Agreement.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS
OF THIS TRUST AGREEMENT AND THE SUBORDINATION PROVISIONS AND OTHER TERMS OF
THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE THE AGREEMENT OF THE
TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS
SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Amended and Restated Trust
Agreement to be duly executed, all as of the day and year first above
written.
THE MONTANA POWER COMPANY
By: /s/ X. X. Xxxxxxxx
---------------------------------------
Vice President and Chief Financial
and Information Officer
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx III
---------------------------------------
Title: XXXXXX X. XXXXXXXXX III
Assistant Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxxxx Xxxxx
----------------------------------------
Title: XXXXXXXXX XXXXX, PRESIDENT & COO
/s/ X. X. Xxxxxxxx
----------------------------------------
X. X. Xxxxxxxx, solely in his capacity
as Administrative Trustee
/s/ X. X. Xxxxxxxx
----------------------------------------
X. X. Xxxxxxxx, solely in her capacity
as Administrative Trustee
/s/ X. X. Xxxxxxx
------------------------------------------
X. X. Xxxxxxx, solely in her capacity
as Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
MONTANA POWER CAPITAL I
THIS CERTIFICATE OF TRUST of Montana Power Capital I (the
"Trust"), dated as of October 15, 1996, is being duly executed and filed
by the undersigned, as trustees, to form a business trust under the
Delaware Business Trust Act (12 Del. C. Section 3801, et seq.).
------- ------
1. Name. The name of the business trust being formed hereby is
Montana Power Capital I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of
Delaware is The Bank of New York (Delaware), Xxxxx Xxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of
the Trust, have executed this Certificate of Trust as of the date first
above written.
THE BANK OF NEW YORK (DELAWARE), /s/ Xxxxx X. Xxxxxxxx,
not in its individual capacity ----------------------------------
but solely as Trustee not in his individual
but solely as Trustee
By: /s/ Xxxxxxx X. Bieneduce
----------------------------
Name: Xxxxxxx X. Bieneduce
Title: Assistant Vice President
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx III
----------------------------
Name: XXXXXX X. XXXXXXXXX III
Title: Assistant Vice President
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number: Number of Common Securities:
Certificate Evidencing Common Securities
of
Montana Power Capital I
Common Securities
(liquidation amount $25 per Common Security)
Montana Power Capital I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that The
Montana Power Company (the "Holder") is the registered owner of the number
set forth above of the common securities of the Trust, representing
undivided beneficial interests in the assets of the Trust and designated
the Common Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). Except as provided in Section 5.02 of the Trust
Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust, dated as of November 1,
1996, as the same may be amended from time to time (the "Trust
Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the holder of this certificate without charge upon
written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust on this ___ day
of ________ , 199_ .
Montana Power Capital I
By:
------------------------------------------
not in his (her) individual capacity
but solely as Administrative Trustee
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ __ , 199_, between The Montana
Power Company, a Montana corporation ("Montana Power"), and Montana Power
Capital I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue and sell its preferred
securities (the "Preferred Securities") and to apply the proceeds of such
sale to the purchase from Montana Power of Montana Power's Junior
Subordinated Debentures;
NOW, THEREFORE, in consideration of the acceptance of the
Preferred Securities by each holder thereof, which acceptance Montana Power
acknowledges shall benefit Montana Power and which acceptance Montana Power
acknowledges will be made in reliance upon the execution and delivery of
this Agreement, Montana Power, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Montana Power. Subject to the terms
---------------------------
and conditions hereof, Montana Power hereby irrevocably and unconditionally
assumes the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries"). As used
herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any
Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of,
and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate
-----------------
and be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at
any time any Beneficiary must restore payment of any sum paid on account of
any Obligation, under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Montana Power hereby waives (i)
----------------
notice of acceptance of this Agreement and of any Obligation to which it
may apply, and (ii) presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.
Section 1.04. No Impairment. The obligations, covenants,
-------------
agreements and duties of Montana Power under this Agreement shall in no way
be affected or impaired by reason of the happening from time to time of any
of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part
of the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
Neither the Trust nor any Beneficiary shall have any obligation to give
notice to, or obtain the consent of, Montana Power with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
-----------
Agreement directly against Montana Power, and Montana Power waives any
right or remedy to require that any action be brought against the Trust or
any other person or entity before proceeding against Montana Power.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations,
--------------
covenants, agreements and duties contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Montana
Power.
Section 2.02. Amendment. So long as there shall remain any
---------
Beneficiary or any Preferred Securities shall be outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
-------
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or
upon receipt of an answer-back, if sent by telex), to wit:
Montana Power Capital I
c/o The Montana Power Company
00 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Administrative Trustees
The Montana Power Company
00 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000 000-0000
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first above
written.
THE MONTANA POWER COMPANY
By:
---------------------------------------------
Name:
Title:
MONTANA POWER CAPITAL I
By:
--------------------------------------------
not in his individual capacity, but solely
as Administrative Trustee
---------------------------------------------
not in her individual capacity, but solely
as Administrative Trustee
---------------------------------------------
not in his individual capacity, but solely
as Administrative Trustee
EXHIBIT D
[Clearing Agency Legend]
Certificate Number: Number of Preferred Securities:
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Montana Power Capital I
8.45% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security)
Montana Power Capital I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of the number set forth
above of the preferred securities of the Trust representing an undivided
beneficial interests in the assets of the Trust and designated as 8.45%
Cumulative Quarterly Income Preferred Securities, Series A (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The
Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of
this certificate duly endorsed and in proper form for transfer as
provided in the Trust Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are issued
and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust, dated as of
November 1, 1996, as the same may be amended from time to time (the "Trust
Agreement"). The holder of this certificate is entitled to the benefits of
the Guarantee Agreement of The Montana Power Company, a Montana
corporation, and The Bank of New York, as guarantee trustee, dated as of
November 1, 1996 (the "Guarantee"), to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the Guarantee to the
holder of this certificate without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate
is bound by the Trust Agreement and is entitled to the benefits thereunder.
[If not manually signed by the Administrative Trustee -- This certificate
is not valid unless countersigned by the Transfer Agent and registered by
the Registrar.]
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate for and on behalf of the Trust on this
__ day of _________, 199_.
MONTANA POWER CAPITAL I
By:
----------------------------------------
not in his (her) individual capacity, but
solely as Administrative Trustee
Countersigned by:
-----------------------------------
Transfer Agent
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------
-------------------------------------------------------------------------
------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date:
-------------------
Signature:
------------------------------
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
