EXHIBIT 10.11
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
INDYMAC BANCORP, INC., AS SPONSOR
XXXXX X. XXXXXX AND XXXXXXX X. XXXXXXX, AS ADMINISTRATIVE TRUSTEES
WILMINGTON TRUST COMPANY, AS PROPERTY TRUSTEE
WILMINGTON TRUST COMPANY, AS DELAWARE TRUSTEE
THE BANK OF NEW YORK, AS PAYING AGENT,
REGISTRAR, TRANSFER AGENT AND
AUTHENTICATING AGENT
AND THE SEVERAL HOLDERS OF THE SECURITIES
DATED AS OF NOVEMBER 14, 2001
INDYMAC CAPITAL TRUST I
TABLE OF CONTENTS
Page
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ARTICLE I INTERPRETATION AND DEFINITIONS................................................... 1
Section 1.1 Interpretation....................................................... 1
Section 1.2 Definitions.......................................................... 2
ARTICLE II TRUST INDENTURE ACT............................................................. 16
Section 2.1 Trust Indenture Act; Application..................................... 16
Section 2.2 Lists of Holders..................................................... 16
Section 2.3 Reports by the Property Trustee...................................... 17
Section 2.4 Periodic Reports to the Property Trustee............................. 17
Section 2.5 Evidence of Compliance with Conditions Precedent..................... 17
Section 2.6 Trust Enforcement Events; Waiver..................................... 17
Section 2.7 Trust Enforcement Events; Notice..................................... 18
ARTICLE III ORGANIZATION................................................................... 19
Section 3.1 Name................................................................. 19
Section 3.2 Office............................................................... 19
Section 3.3 Purpose.............................................................. 19
Section 3.4 Authority............................................................ 19
Section 3.5 Title to Property of the Trust....................................... 20
Section 3.6 Prohibition of Actions by the Trust and the Trustees................. 20
Section 3.7 Powers and Duties of the Administrative Trustees..................... 21
Section 3.8 Powers and Duties of the Property Trustee............................ 23
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.......... 25
Section 3.10 Certain Rights of the Property Trustee............................... 27
Section 3.11 Powers and Duties of the Delaware Trustee............................ 29
Section 3.12 Not Responsible for Recitals or Issuance of Securities............... 29
Section 3.13 Duration of the Trust................................................ 29
Section 3.14 Mergers, Consolidations, Conversions, Amalgamations or
Replacements of the Trust............................................ 29
Section 3.15 Property Trustee May File Proofs of Claim............................ 31
ARTICLE IV SPONSOR......................................................................... 32
Section 4.1 Responsibilities of the Sponsor...................................... 32
Section 4.2 Indemnification and Expenses of the Trustees......................... 32
Section 4.3 Right to Proceed..................................................... 33
ARTICLE V TRUSTEES......................................................................... 33
Section 5.1 Number of Trustees................................................... 33
Section 5.2 Delaware Trustee; Eligibility........................................ 33
Section 5.3 Property Trustee; Eligibility........................................ 34
Section 5.4 Qualifications of Administrative Trustees Generally.................. 35
Section 5.5 Initial Administrative Trustees...................................... 35
Section 5.6 Appointment, Removal and Resignation of Trustees..................... 35
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Section 5.7 Vacancies among Trustees............................................. 36
Section 5.8 Effect of Vacancies.................................................. 37
Section 5.9 Meetings............................................................. 37
Section 5.10 Delegation of Power by the Administrative Trustees................... 37
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.......... 38
ARTICLE VI THE SECURITIES.................................................................. 38
Section 6.1 General Provisions Regarding the Securities.......................... 38
Section 6.2 Execution and Authentication......................................... 39
Section 6.3 Form and Dating...................................................... 40
Section 6.4 The Sponsor's Purchase of the Common Securities...................... 41
Section 6.5 Distributions........................................................ 41
Section 6.6 Remarketing.......................................................... 44
Section 6.7 Limited Right to Require Exchange of Preferred Securities and
Repurchase of Debentures............................................. 50
Section 6.8 Change of Control Right to Require Exchange of Preferred
Securities and Repurchase of Debentures.............................. 51
Section 6.9 Redemption........................................................... 52
Section 6.10 Distribution of Debentures in Exchange for Securities Upon the
Occurrence of a Special Event........................................ 54
Section 6.11 Voting Rights of the Preferred Securities............................ 56
Section 6.12 Voting Rights of the Common Securities............................... 58
Section 6.13 Ranking.............................................................. 59
Section 6.14 Registrar, Paying Agent and Transfer Agent........................... 59
Section 6.15 Paying Agent to Hold Money in Trust.................................. 60
Section 6.16 Replacement Securities............................................... 60
Section 6.17 Outstanding Preferred Securities..................................... 61
Section 6.18 Preferred Securities in Treasury..................................... 61
Section 6.19 Deemed Security Holders.............................................. 61
Section 6.20 Cancellation......................................................... 61
Section 6.21 CUSIP Numbers........................................................ 62
Section 6.22 Global Preferred Securities; Legends................................. 62
ARTICLE VII TRANSFER OF SECURITIES......................................................... 65
Section 7.1 Transfer of Securities............................................... 65
Section 7.2 Separation and Rejoining of Units.................................... 67
Section 7.3 Book-Entry Interests................................................. 67
Section 7.4 Notices to Clearing Agency........................................... 68
Section 7.5 Appointment of Successor Clearing Agency............................. 68
ARTICLE VIII DISSOLUTION AND TERMINATION OF THE TRUST...................................... 68
Section 8.1 Dissolution and Termination of the Trust............................ 68
Section 8.2 Liquidation Distribution Upon Dissolution or Termination of the
Trust................................................................ 69
ARTICLE IX LIMITATION OF LIABILITY OF THE HOLDERS, THE TRUSTEES OR OTHERS.................. 70
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Section 9.1 Liability............................................................ 70
Section 9.2 Exculpation.......................................................... 71
Section 9.3 Fiduciary Duty....................................................... 71
Section 9.4 Indemnification...................................................... 72
Section 9.5 Outside Businesses................................................... 75
ARTICLE X ACCOUNTING....................................................................... 76
Section 10.1 Fiscal Year.......................................................... 76
Section 10.2 Certain Accounting Matters........................................... 76
Section 10.3 Banking.............................................................. 76
Section 10.4 Withholding.......................................................... 76
ARTICLE XI AMENDMENTS AND MEETINGS......................................................... 77
Section 11.1 Amendments........................................................... 77
Section 11.2 Meetings of the Holders; Action by Written Consent................... 79
ARTICLE XII REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE............... 80
Section 12.1 Representations and Warranties of the Property Trustee............... 80
Section 12.2 Representations and Warranties of The Delaware Trustee............... 81
ARTICLE XIII MISCELLANEOUS................................................................. 82
Section 13.1 Notices.............................................................. 82
Section 13.2 Governing Law........................................................ 83
Section 13.3 Intention of the Parties............................................. 83
Section 13.4 Headings............................................................. 83
Section 13.5 Successors and Assigns............................................... 83
Section 13.6 Partial Enforceability............................................... 84
Section 13.7 Counterparts......................................................... 84
Section 13.8 The Exchange Agent................................................... 84
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of November 14, 2001 among
(i) IndyMac Bancorp, Inc., a Delaware corporation (including any successors or
assigns, the "Sponsor"), (ii) Wilmington Trust Company, a Delaware banking
corporation, as property trustee (in such capacity, the "Property Trustee"),
(iii) Wilmington Trust Company, a Delaware banking corporation (in such
capacity, the "Delaware Trustee"), (iv) Xxxxx X. Xxxxxx, an individual, and
Xxxxxxx X. Xxxxxxx, an individual, each of whose address is c/o IndyMac Bancorp,
Inc. 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, 00000 (each, an
"Administrative Trustee," and together, the "Administrative Trustees"), (v) The
Bank of New York, a New York banking corporation, as Paying Agent, Registrar,
Transfer Agent and Authenticating Agent and (vi) the several Holders (as
hereinafter defined).
WITNESSETH
WHEREAS, the Sponsor and certain of the Trustees have heretofore duly
declared and established a business trust (the "Trust") pursuant to the Delaware
Business Trust Act (as hereinafter defined) by entering into that certain Trust
Agreement, dated as of August 16, 2001 (the "Original Trust Agreement"), and by
the execution and filing with the Secretary of State of Delaware of the
Certificate of Trust, filed on August 16, 2001; and
WHEREAS, the Sponsor and the Trustees desire to amend the and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities (as hereinafter
defined) by the Trust to the Sponsor, (ii) the issuance and sale of the
Preferred Securities (as hereinafter defined) by the Trust pursuant to the
Underwriting Agreement, and (iii) the acquisition by the Trust from the Sponsor
of all of the right, title and interest in the Debentures (as hereinafter
defined);
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 INTERPRETATION.
Unless the context otherwise requires:
(a) capitalized terms used in this Trust Agreement but not defined in the
preamble above have the respective meanings assigned to them in Section 1.2;
(b) a term defined anywhere in this Trust Agreement has the same meaning
throughout;
(c) all references to "this Trust Agreement" are to this Amended and
Restated Trust Agreement as modified, supplemented or amended from time to time;
(d) all references in this Trust Agreement to Articles, Sections and
Exhibits are to Articles and Sections of and Exhibits to this Trust Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Trust Agreement unless otherwise defined in this Trust Agreement;
and
(f) a reference to the singular includes the plural and vice versa, and a
reference to any masculine form of a term includes the feminine form of such
term, as applicable.
SECTION 1.2 DEFINITIONS.
The following terms have the following meanings:
"Accreted Value" means, on the date of determination:
(1) with respect to any Security, the Accreted Value of a Debenture
having an aggregate principal amount equal to the aggregate stated
liquidation amount of such Security; and
(2) with respect to any Debenture, the sum of:
(i) $34.49, which is the portion of the initial purchase price
of a Unit that is allocated to a Preferred Security (as
provided under Section 3.1 of the Unit Agreement); plus
(ii) accrual of the Discount, calculated from November 14, 2001
to the date of determination at an all-in-yield of 9% per
annum on a quarterly bond equivalent yield basis using a
360-day year of twelve 30-days months less $0.75 per quarter
until such sum equals $50 on November 14, 2031.
The "Discount" equals the difference between the principal amount of $50 payable
in respect of such Debenture on November 14, 2031 and the initial purchase price
of $34.49.
"Administrative Trustee" has the meaning set forth in Section 5.4.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar, Authenticating Agent or Transfer
Agent.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for the beneficial interests in the Global Preferred Securities, the rules
and procedures of the Depositary that apply to such transfer or exchange.
"Authenticating Agent" means The Bank of New York, a New York banking
corporation, and any successor thereto.
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"Authorized Officer" of a Person means any other Person that is authorized
to legally bind such former Person.
"Book-Entry Interest" means a beneficial interest in the Global Preferred
Securities registered in the name of a Clearing Agency or its nominee, ownership
and transfers of which shall be maintained and made through book-entries by a
Clearing Agency.
"Business Day" means any day other than a Saturday or a Sunday or a day on
which banking institutions in (i) the Borough of Manhattan in The City of New
York, (ii) Los Angeles, California or (ii) Wilmington, Delaware are authorized
or required by law, regulation or executive order to close.
"Calculation Agency Agreement" means the Calculation Agency Agreement,
dated as of November 14, 2001, between the Sponsor and the Calculation Agent, as
amended, supplemented or replaced from time to time.
"Calculation Agent" means Valuation Research Corporation, as initial
Calculation Agent under the Calculation Agreement, and any successor thereto.
"Certificate" means a Common Securities Certificate or a Preferred
Securities Certificate.
"Change of Control" shall be deemed to have occurred if:
(1) the acquisition (other than open market purchases on any national
securities exchange on which the Sponsor's capital stock is traded) by any
person, including any syndicate or group deemed to be a "person" under
Section 13(d)(3) of the Exchange Act of beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition transaction or
series of purchase, merger or other acquisition transactions of shares of
the Sponsor's capital stock entitling that person to exercise 50% or more
of the total voting power of all shares of the Sponsor's capital stock
entitled to vote generally in elections of directors, other than any
acquisition by the Sponsor, any of the Sponsor's subsidiaries or any of the
Sponsor's employee benefit plans; or
(2) the consolidation or merger of the Sponsor with or into any other
person, any merger of another person into the Sponsor, or any conveyance,
transfer, sale, lease or other disposition of all or substantially all of
the Sponsor's properties and assets to another person (which shall not
include a bankruptcy or receivership), other than:
(a) any transaction (1) that does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of the Sponsor's capital stock and (2) notwithstanding such
transaction, during any period of two consecutive years after such
transaction individuals who at the beginning of such period
constituted the Board of Directors of the Sponsor (together with any
new directors whose election or appointment by such Board or whose
nomination for election by the shareholders of the Sponsor was
approved by a vote of not less than two-thirds of the Directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election
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was previously so approved) continue to constitute a majority of the
Board of Directors of the Sponsor then in office; or
(b) any merger solely for the purpose of changing the Sponsor's
jurisdiction of incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of common stock solely
into shares of common stock of the surviving entity;
provided, that a Change of Control shall not be deemed to have occurred if:
(1) the closing sale price per share of the Sponsor's common stock for
any five Trading Days within the period of 10 consecutive Trading Days
ending immediately after the later of the Change of Control or the public
announcement of the Change of Control, in the case of a Change of Control
under the first clause above, or the period of 10 consecutive Trading Days
ending immediately before the Change of Control, in the case of a Change of
Control under the second clause above, equals or exceeds 110% of the
Exercise Price of the Warrants (as adjusted at maturity; or
(2) at least 90% of the consideration in the transaction or
transactions constituting a Change of Control consists of shares of common
stock traded or to be traded immediately following such Change of Control
on a national securities exchange or the Nasdaq National Market and, as a
result of such transaction or transactions, the warrants become exercisable
solely into such common stock (and any rights attached thereto).
For purposes of the definition of "Change of Control", a beneficial owner shall
be determined in accordance with Rule 13d-3 promulgated by the SEC under the
Exchange Act. The term "person" includes any syndicate or group which would be
deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
"Change of Control Notice Date" has the meaning set forth in Section 6.8.
"Change of Control Repurchase Date" means the date which is 105 days
following the Change of Control Notice Date.
"Change of Control Repurchase Price" means the Accreted Value of the
Debentures that are exchanged for Preferred Securities upon the exercise of the
Change of Control Repurchase Right plus accrued and unpaid interest (including
deferred interest) on such Debentures to, but excluding, the Change of Control
Repurchase Date.
"Change of Control Repurchase Right" has the meaning set forth in 6.8.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Preferred Securities and in whose name or in the name of a nominee of that
organization shall be registered the Global Preferred Securities and which shall
undertake to effect book-entry transfers and pledges of the Preferred
Securities.
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"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Date" under the Underwriting Agreement.
"Closing Price" of any security on any date of determination means:
(1) the closing sale price (or, if no closing sale price is reported,
the last reported sale price) of such security on the New York Stock
Exchange on such date;
(2) if such security is not listed for trading on the New York Stock
Exchange on any such date, the closing sale price as reported in the
composite transactions for the principal U.S. securities exchange on which
such security is so listed;
(3) if such security is not so listed on a U.S. national or regional
securities exchange, the closing sale price as reported by the Nasdaq
National Market;
(4) if such security is not so reported, the last quoted bid price for
such security in the over-the-counter market as reported by the National
Quotation Bureau or similar organization; or
(5) if such bid price is not available, the average of the mid-point
of the last bid and ask prices of such security on such date from at least
three nationally recognized independent investment banking firms retained
for this purpose by the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Trust
Agreement, as such specific section or corresponding provision is in effect on
the date of application of the provisions of this Trust Agreement containing
such reference.
"Commission" means the United States Securities and Exchange Commission as
from time to time constituted, or if at any time after the execution of this
Trust Agreement such Commission is not existing and performing the duties now
assigned to it under applicable federal securities laws, then the body
performing such duties at such time.
"Common Securities" has the meaning set forth in Section 6.1(a).
"Common Securities Certificate" means a certificate in fully registered
form representing Common Securities, substantially in the form of Exhibit B.
"Common Stock" means the common stock of the Sponsor.
"Compounded Distributions" has the meaning set forth in Section 6.5(b).
"Corporate Trust Office" means the office of the Property Trustee at which
the corporate trust business of the Property Trustee shall, at any particular
time, be principally administered,
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which office at the date of execution of this Trust Agreement is located at
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
"Coupon Rate" has the meaning set forth in Section 6.5(a).
"Covered Person" means:
(1) any officer, director, shareholder, partner, member,
representative, employee or agent of (a) the Trust or (b) the Trust's
Affiliates; and
(2) any Holder.
"Debenture Distribution Notice" has the meaning set forth in Section
6.10(c).
"Debenture Issuer" means IndyMac Bancorp, Inc., a Delaware corporation, or
any successor entity resulting from any consolidation, amalgamation, merger or
other business combination, in its capacity as issuer of the Debentures under
the Indenture.
"Debenture Issuer Indemnified Person" means:
(1) any Administrative Trustee;
(2) any Affiliate of any Administrative Trustee;
(3) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Administrative Trustee; or
(4) any officer, employee or agent of the Trust or its Affiliates.
"Debenture Trustee" means The Bank of New York, a New York banking
corporation, as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the 6% Junior Subordinated Deferrable Interest
Debentures due November 14, 2031 to be issued by the Debenture Issuer pursuant
to the Indenture and to be purchased by the Trust and held by the Property
Trustee.
"Definitive Preferred Securities" has the meaning set forth in Section 6.3.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq., as it may be amended from time to time.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means DTC until another Clearing Agency becomes its successor.
"Direct Action" has the meaning set forth in Section 3.8(f).
"Distribution" means a distribution payable to Holders in accordance with
Section 6.5.
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"Distribution Date" has the meaning set forth in Section 6.5(b).
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation, and the rules and regulations
promulgated thereunder.
"Exchange Agent" means Wilmington Trust Company in its separate capacity as
Exchange Agent, and any successor thereto.
"Exchange Notice" has the meaning set forth in Section 8.2(c).
"Exercise Price" has the meaning set forth in the Warrant Agreement.
"Extension Period" has the meaning set forth in Section 6.5(c).
"Failed Remarketing" has the meaning set forth in Section 6.6(m).
"Failed Remarketing Date" means a Remarketing Date on which a Failed
Remarketing occurs.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section 9.4(b).
"Fiscal Year" has the meaning set forth in Section 10.1.
"Global Preferred Security" has the meaning set forth in Section 6.3.
"Global Unit Certificate" has the meaning set forth in Section 6.3.
"Guarantee" means the Guarantee Agreement, dated as of November 14, 2001,
between the Sponsor, as Guarantor in respect of the Securities, and The Bank of
New York, as Guarantee Trustee, as amended or supplemented from time to time.
"Holder" means a Person in whose name a Security is registered, such Person
being a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indemnified Person" means a Debenture Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the original Indenture, dated as of November 14, 2001,
between the Debenture Issuer and the Debenture Trustee, as supplemented by the
First Supplemental Indenture, dated as of November 14, 2001, between the
Debenture Issuer and the Debenture Trustee, as further amended or supplemented
from time to time, pursuant to which the Debentures are to be issued.
"Indenture Event of Default" means an Event of Default (as such term is
defined in the Indenture) under the Indenture.
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"Interest Payment Date" has the meaning set forth in the Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act and the rules and regulations promulgated thereunder.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation, and the rules and
regulations promulgated thereunder.
"Investment Company Event" means the receipt by the Trust of an Opinion of
Counsel, rendered by an independent law firm having a recognized national
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in Investment Company Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an Investment Company
that is required to be registered under the Investment Company Act, which Change
in Investment Company Act Law becomes effective on or after the date on which
the Preferred Securities were initially issued and sold.
"Issuers" is a collective reference to the Sponsor and the Trust.
"Legal Action" has the meaning set forth in Section 3.7(f).
"Legal Cause Remarketing Event" means a Remarketing Event that occurs upon
the occurrence of:
(1) (a) a Tax Event or an Investment Company Event, provided that
the Administrative Trustees have been informed by an independent law
firm that such firm, for substantive reasons, cannot deliver a No
Recognition Opinion; or
(b) a Regulatory Capital Event; and
(2) the Sponsor elects to redeem the Warrants and thereby cause a
Remarketing of the Preferred Securities to occur and causes written notice
of its election to be given to the Holders of the Preferred Securities, the
holders of the Units and the holders of the Warrants.
"Legal Requirements" mean compliance with all applicable laws and
regulations, if any, including, without limitation, the Securities Act,
necessary to permit the Remarketing of the Preferred Securities (and the
subsequent exchange of Preferred Securities for Debentures if a purchaser in the
Remarketing so elects to exchange its purchased Preferred Securities for
Debentures pursuant to Section 6.6(c)), the contemporaneous modifications to the
terms of the Debentures pursuant to the Indenture and the contemporaneous
redemption of the Warrants.
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"Like Amount" means, with respect to a redemption of the Securities,
Securities having an Accreted Value equal to the Accreted Value of Debentures to
be repaid in accordance with their terms.
"Liquidation" has the meaning set forth in Section 8.2(a).
"Liquidation Distribution" has the meaning set forth in Section 8.2(b).
"List of Holders" has the meaning set forth in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holders of outstanding
Securities voting together as a single class, or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of more than
50% of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities or all outstanding Securities of the relevant class,
as the case may be.
"Managing Underwriter" means Xxxxxx Xxxxxxx & Co. Incorporated.
"Maturity Remarketing Date" means September 13, 2031.
"90 Day Period" has the meaning set forth in Section 6.10(a).
"No Recognition Opinion" has the meaning set forth in Section 6.10(b)(i).
"Officers' Certificate" means, when delivered by the Trust, a certificate
signed by a majority of the Administrative Trustees and, when delivered by the
Sponsor, a certificate signed by any two of the Chairman, a Vice Chairman, the
Chief Executive Officer, the President, the Chief Operating Officer, a Vice
President, the Chief Financial Officer, the Treasurer, the Chief Administrative
Officer, the Chief Accounting Officer, the Secretary or an Assistant Secretary
of the Sponsor. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Trust Agreement shall include,
where applicable:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, rendered by an
independent law firm which shall be acceptable to the Property Trustee.
"Option Closing Date" means the "Option Closing Date" under the
Underwriting Agreement.
"Original Trust Agreement" has the meaning set forth in the Recitals
hereto.
"Paying Agent" has the meaning set forth in Section 6.14.
"Payment Amount" has the meaning set forth in Section 6.5(f).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning set forth in Section 6.1(a).
"Preferred Securities Certificate" means a certificate in fully registered
form representing Preferred Securities, substantially in the form of Exhibit A.
"Preferred Security Beneficial Owner" means, with respect to a Book-Entry
Interest, a Person who is the beneficial owner of such Book-Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Property Account" means a segregated non-interest bearing trust account
maintained with a banking institution, the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the Preferred
Securities by a "nationally recognized statistical rating organization" within
the meaning of Rule 436(g)(2) under the Securities Act.
"Property Trustee" has the meaning set forth in Section 5.3(a).
"Pro Rata" means pro rata to each Holder according to the aggregate stated
liquidation amount of the Securities held by such Holder in relation to the
aggregate stated liquidation amount of all Securities outstanding unless, in
relation to a payment, a Trust Enforcement Event has occurred and is continuing,
in which case any funds available to make such payment shall be paid first to
each Holder of the Preferred Securities pro rata according to the aggregate
stated liquidation amount of Preferred Securities held by the relevant Holder
relative to the aggregate stated liquidation amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate stated liquidation amount of Common Securities held by the
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relevant Holder relative to the aggregate stated liquidation amount of
all Common Securities outstanding.
"Quorum" means a majority of the Administrative Trustees or, if there are
only two Administrative Trustees, both of them.
"Redemption Date" has the meaning set forth in Section 6.9(a).
"Redemption Notice" has the meaning set forth in Section 6.9(c).
"Redemption Price" has the meaning set forth in Section 6.9(a).
"Registrar" has the meaning set forth in Section 6.14.
"Regular Record Date" means the date on which determination is made as to
which Holders Distributions are payable.
"Regulatory Capital Event" means that the Sponsor shall have become, or
pursuant to law or regulation will become within 180 days, subject to capital
requirements under which, in the Opinion of Counsel, rendered by an independent
bank regulatory law firm experienced in such matters, the Preferred Securities
would not constitute Tier 1 Capital applied as if the Sponsor (or its successor)
were a bank holding company (as that concept is used in the guidelines or
regulations issued by the Federal Reserve Board (or its then equivalent)).
"Remarketing" means the operation of the procedures for remarketing set
forth in Section 6.6.
"Remarketing Agent" means the remarketing agent (or any successor
remarketing agent) selected by the Sponsor.
"Remarketing Agreement" means the Remarketing Agreement to be entered into
among the Sponsor, the Trust and the Remarketing Agent, as amended or
supplemented from time to time.
"Remarketing Date" means:
(1) with respect to a Trading Remarketing Event, a date selected by
the Sponsor not less than two nor more than 18 Business Days after the
notice is given to the holders of the Units and the Holders of the
Preferred Securities;
(2) with respect to a Legal Cause Remarketing Event, a date selected
by the Sponsor not less than two nor more than 18 Business Days after the
notice is given to the holders of the Units and the Holders of the
Preferred Securities and no more than 90 days following the occurrence of
the Legal Cause Remarketing Event; and
(3) the Maturity Remarketing Date.
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"Remarketing Event" means the occurrence of a Trading Remarketing Event or
a Legal Cause Remarketing Event or the Maturity Remarketing Date.
"Remarketing Settlement Date" means, with respect to any Remarketing Date,
two Business Days following such Remarketing Date.
"Repurchase Price" means the Accreted Value of the Debentures that are
received in exchange for Preferred Securities upon the exercise of the
Repurchase Right plus accrued and unpaid interest (including deferred interest)
on such Debentures to, but excluding, the applicable Required Repurchase Date.
"Repurchase Right" has the meaning set forth in Section 6.7(a).
"Required Repurchase Date" shall be the applicable January 1, February 1,
March 1, April 1, May 1, June 1, July 1, August 1, September 1, October 1,
November 1 and December 1 of each year on which the Repurchase Price shall be
payable if a Holder of a Preferred Security elects to exercise its Repurchase
Right.
"Reset Rate" means the interest rate per annum on the Debentures (and, as a
result, the Distribution rate per annum on the Securities), that is determined
pursuant to the Remarketing of the Preferred Securities; provided that if a
Failed Remarketing occurs, the Reset Rate shall equal 12.5% per annum.
"Responsible Officer" means, with respect to the Property Trustee, any
officer within the corporate trust department of the Property Trustee, including
any vice president, assistant vice president, assistant treasurer, trust officer
or any other officer of the Property Trustee who customarily performs functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Trust Agreement.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or any
successor rule or regulation thereunder, and the rules and regulations
promulgated thereunder.
"Securities" mean the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation, and the rules and regulations promulgated
thereunder.
"66 2/3% in Liquidation Amount" shall mean Holders of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of 66 2/3% or
more of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities or all outstanding Securities of the relevant class,
as the case may be.
"Special Event" has the meaning set forth in Section 6.10(a).
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"Special Record Date" means the Remarketing Date.
"Sponsor" means IndyMac Bancorp, Inc., a Delaware corporation, or any
success entity resulting from any merger, consolidation, amalgamation or
replacement by or conveyance, transfer or lease of its properties as an entirety
or substantially as an entirety, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.14(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
5.6(b)(i).
"Successor Securities" has the meaning set forth in Section 3.14(b)(i)(B).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Trust of an Opinion of Counsel,
rendered by an independent law firm having a recognized national tax practice,
to the effect that, as a result of:
(1) any amendment to, or change in or announced proposed change in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein; or
(2) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or
change is effective or proposed change, administrative pronouncement or
judicial decision is announced on or after the Closing Date, there is more
than an insubstantial risk that:
(a) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to
interest received or accrued on the Debentures; or
(b) the Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"10% in Liquidation Amount" means, except as provided in the terms of the
Preferred Securities or by the Trust Indenture Act, Holders of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities voting separately as a class, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accumulated and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Securities or all outstanding Securities of the relevant class,
as the case may be.
"Trading Day" means:
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(1) if the Common Stock or other capital stock then issuable upon
exercise of the Warrants is listed or admitted for trading on the New York
Stock Exchange, a day on which the New York Stock Exchange is open for
business;
(2) if the Common Stock or other capital stock then issuable upon
exercise of the Warrants is not listed or admitted for trading on the New
York Stock Exchange but is listed or admitted for trading on a national
securities exchange, a day on which such national securities exchange is
open for business;
(3) if the Common Stock or other capital stock then issuable upon
exercise of the Warrants is not listed or admitted for trading on the New
York Stock Exchange or other national securities exchange but is quoted on
the Nasdaq National Market, a day on which trades may be made thereon; or
(4) if the Common Stock or other capital stock then issuable upon
exercise of the Warrants is not so listed or admitted for trading on the
New York Stock Exchange or other national securities exchange or quoted on
the Nasdaq National Market, a day on which the applicable securities market
in which such security is traded is open for business.
"Trading Remarketing Event" means a Remarketing Event that occurs because:
(1) on any date after November 14, 2006 but prior to September 13,
2031, the Closing Price of a share of the Common Stock exceeds and has
exceeded for at least 20 Trading Days within the immediately preceding 30
consecutive Trading Days, $37.57 per share.
(2) within ten Business Days of such date, the Sponsor elects to
redeem the Warrants and thereby cause a Remarketing of the Preferred
Securities to occur and causes written notice of its election to be given
to the Holders of the Preferred Securities, the holders of the Units and
the holders of the Warrants.
"Transfer Agent" has the meaning set forth in Section 6.14.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" has the meaning set forth in the Recitals hereto.
"Trustee" or "Trustees" means each Person who has signed this Trust
Agreement as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
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"Trust Enforcement Event" means, with respect to the Securities, an event
of default under this Trust Agreement, which occurs upon the happening of an
Indenture Event of Default.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Underwriting Agreement" means the underwriting agreement, dated November
8, 2001, between the Sponsor, an Administrative Trustee and the Managing
Underwriter with respect to the initial offering and sale of the Units,
Preferred Securities and Warrants.
"Unit" means the collective rights and obligations of a holder of a unit
certificate issued under the Unit Agreement in respect of a Preferred Security,
a Debenture and a Warrant.
"Unit Agent" means The Bank of New York as initial Unit Agent under the
Unit Agreement, and any successor thereto.
"Unit Agreement" means the Unit Agreement, dated November 14, 2001, among
the Sponsor, the Trust, Wilmington Trust Company, as Property Trustee, and The
Bank of New York, as Unit Agent and Warrant Agent, as amended or supplemented
from time to time.
"Warrant" has the meaning set forth in the Warrant Agreement.
"Warrant Agent" means The Bank of New York as initial Warrant Agent under
the Warrant Agreement, and any successor thereto.
"Warrant Agreement" means the Warrant Agreement, dated November 14, 2001,
between the Sponsor, and The Bank of New York, as Warrant Agent, as amended or
supplemented from time to time.
"Warrant Requirements" mean:
(1) a registration statement covering the issuance and sale of Common
Stock to the holders of Warrants upon exercise of such Warrants shall be
effective under the Securities Act, or such issuance and sale shall be
exempt from the registration requirements of the Securities Act;
(2) the shares of Common Stock shall be registered, or qualified
under, or shall be deemed to be exempt from the registration or
notification requirements under the securities laws applicable to such
holder of Warrants; and
(3) a then current prospectus shall be available for delivery to
exercising holders of the Warrants.
"Warrant Value" has the meaning set forth in the Warrant Agreement.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement in order for
this Trust Agreement to be qualified under the Trust Indenture Act and shall be
governed, to the extent applicable, by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Trust Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes and shall not affect the nature of the Securities as
equity securities representing undivided beneficial interests in the assets of
the Trust.
SECTION 2.2 LISTS OF HOLDERS.
(a) Except when the Property Trustee is the Registrar, each of the Sponsor
and the Administrative Trustees on behalf of the Trust shall provide the
Property Trustee a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders"):
(i) as of the record date relating to the payment of any Distribution,
at least one Business Day prior to the date for payment of such
Distribution, except while the Preferred Securities are represented by one
or more Global Preferred Securities, and
(ii) at any other time, within 30 days of receipt by the Trust of a
written request from the Property Trustee for a List of Holders as of a
date no more than fifteen days before such List of Holders is given to the
Property Trustee.
If at any time the List of Holders does not differ from the most recent List of
Holders provided to the Property Trustee by the Sponsor and the Administrative
Trustees on behalf of the Trust, then neither the Sponsor nor the Administrative
Trustees shall be obligated to deliver such List of Holders. The Property
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
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SECTION 2.3 REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year (commencing with the year of the
first anniversary of the issuance of the Preferred Securities), the Property
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee also shall comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 PERIODIC REPORTS TO THE PROPERTY TRUSTEE.
Each of the Sponsor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
are required by Section 314 of the Trust Indenture Act, if any, and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee annually such evidence of compliance with
any conditions precedent provided for in this Trust Agreement that relate to any
of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 TRUST ENFORCEMENT EVENTS; WAIVER.
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities may waive, by vote or written consent, on behalf of the Holders of
all of the Preferred Securities, any past Trust Enforcement Events in respect of
the Preferred Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the related Trust Enforcement
Event under this Trust Agreement also shall not be waivable; or
(ii) requires the vote or consent of the holders of greater than a
majority in aggregate principal amount of the Debentures (a "Super
Majority") to be waived under the Indenture, the related Trust Enforcement
Event under this Trust Agreement only may be waived by the vote or written
consent of the Holders of at least the proportion in aggregate liquidation
amount of the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Trust Agreement and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
Trust Enforcement Event in respect of the Preferred Securities arising therefrom
shall be deemed to have been cured for every purpose of this Trust Agreement,
17
but no such waiver shall extend to any subsequent or other Trust Enforcement
Event with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of a Trust
Enforcement Event with respect to the Preferred Securities also shall be deemed
to constitute a waiver by the Holders of the Common Securities of any such Trust
Enforcement Event with respect to the Common Securities for all purposes of this
Trust Agreement without any further act, vote or consent of the Holders of the
Common Securities.
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may waive, by vote or written consent, on behalf of the Holders of
all of the Common Securities, any past Trust Enforcement Event in respect of the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Trust
Enforcement Event as provided below in this Section 2.6(b), the related Trust
Enforcement Event under this Trust Agreement also shall not be waivable. The
Holders of Common Securities shall be deemed to have waived any and all Trust
Enforcement Events with respect to the Common Securities and the consequences
thereof until all Trust Enforcement Events with respect to the Preferred
Securities have been cured, waived or otherwise eliminated. Until all Trust
Enforcement Events in respect of the Preferred Securities shall have been so
cured, waived or otherwise eliminated, the Property Trustee shall be deemed to
be acting solely on behalf of the Holders of the Preferred Securities and only
the Holders of the Preferred Securities shall have the right to direct the
Property Trustee in accordance with the terms of the Securities.
The foregoing provisions of this Section 2.6(b) shall be in lieu of Section
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act, and Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly
excluded from this Trust Agreement and the Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon
such cure, waiver or other elimination, any such default shall cease to exist
and any Trust Enforcement Event with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this Trust
Agreement, but no such waiver shall extend to any subsequent or other default or
Trust Enforcement Event with respect to the Common Securities or impair any
right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities constitutes a waiver of
the related Trust Enforcement Event under this Trust Agreement. The foregoing
provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act, and Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Trust Agreement and the Securities, as
permitted by the Trust Indenture Act.
SECTION 2.7 TRUST ENFORCEMENT EVENTS; NOTICE.
(a) The Property Trustee shall, within 90 days after the occurrence of a
Trust Enforcement Event actually known to a Responsible Officer, transmit by
mail, first class postage prepaid, to the Holders, notice of such Trust
Enforcement Event unless such Trust Enforcement Event has been cured before the
giving of such notice; provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures, the
Property
18
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer in good faith determines that the withholding of such notice
is in the interests of the Holders.
(b) The Property Trustee shall not be deemed to have knowledge of any Trust
Enforcement Event except for:
(i) a default under Sections 2.10(a) and 2.10(b) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or of which a Responsible Officer charged with the
administration of this Trust Agreement shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 NAME.
The Trust is named "IndyMac Capital Trust I", as such name may be modified
from time to time by the Administrative Trustees following written notice to the
Holders. The Trust's activities may be conducted under the name of the Trust.
SECTION 3.2 OFFICE.
The address of the principal office of the Trust is c/o IndyMac Bancorp,
Inc., 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000. On ten Business Days'
written notice to the Holders, the Administrative Trustees may designate another
principal office.
SECTION 3.3 PURPOSE.
The exclusive purposes and functions of the Trust are:
(a) to issue and sell the Securities;
(b) to use the proceeds from the sale of the Securities to acquire the
Debentures; and
(c) except as otherwise limited herein, to engage in only those other
activities necessary, advisable or incidental thereto and to the issuance of the
Units.
By acceptance of this Trust, none of the Trustees, the Sponsor, the Holders
or the Preferred Security Beneficial Owners will take any position that is
contrary to the classification of the Trust as a grantor trust for United States
federal income tax purposes.
SECTION 3.4 AUTHORITY.
(a) Subject to the limitations provided in this Trust Agreement and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive authority to carry out the purposes of the Trust. Any action taken by
the Administrative Trustees in accordance with their powers shall constitute the
act of and shall serve to bind the Trust, and any action taken by the Property
Trustee on behalf of the Trust in accordance with its powers shall
19
constitute the act of and shall serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no Person shall be required to inquire
into the authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Trust Agreement.
(b) Except as expressly set forth in this Trust Agreement and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(c) Unless otherwise determined by the Administrative Trustees and except
as otherwise required by the Delaware Business Trust Act or applicable law, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.7.
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Debentures and the
Property Account or as otherwise provided in this Trust Agreement, legal title
to all assets of the Trust shall be vested in the Trust. The Holders shall not
have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION 3.6 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
The Trust shall not, and the Trustees (including the Property Trustee
and the Delaware Trustee) shall cause the Trust not to, engage in any activity
other than as required or authorized by this Trust Agreement. In particular, the
Trust shall not, and the Trustees (including the Property Trustee and the
Delaware Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust in connection with its
ownership of Debentures, but shall distribute all such proceeds to Holders
pursuant to the terms of this Trust Agreement and of the Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess any power or otherwise act in such a way as to vary the
Trust assets;
(iv) possess property for any purpose other than a Trust purpose;
(v) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(vi) mortgage or pledge any of its assets;
(vii) possess any power or otherwise act in such a way as to vary the
terms of the Securities in any way whatsoever (except to the extent
expressly authorized in this Trust Agreement or by the terms of the
Securities);
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(viii) issue any securities or other evidences of ownership of, or
beneficial interest in, the Trust other than the Securities;
(ix) other than as provided in this Trust Agreement or by the terms of
the Securities:
(A) direct the time, method and place of conducting any
proceeding with respect to any remedy available to the Debenture
Trustee, or exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures;
(B) waive any past Indenture Event of Default that is waivable
under the Indenture;
(C) exercise any right to rescind or annul any Trust Agreement
that the principal of all the Debentures shall be due and payable; or
(D) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required,
unless the Trust shall have received an opinion of a nationally
recognized independent tax counsel experienced in such matters to the
effect that such amendment, modification or termination will not cause
more than an insubstantial risk that the Trust will not be classified
as a grantor trust for United States federal income tax purposes;
(x) take any action inconsistent with the status of the Trust as a
grantor trust for United States federal income tax purposes; or
(xi) revoke any action previously authorized or approved by vote of
the Holders of the Preferred Securities.
SECTION 3.7 POWERS AND DUTIES OF THE ADMINISTRATIVE TRUSTEES.
The Administrative Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities to:
(a) establish the terms and forms of the Securities in the manner specified
in Section 6.1 and to issue and sell the Securities in accordance with this
Trust Agreement; provided, however, that:
(i) the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(ii) there shall be no interests in the Trust other than the
Securities, and
(iii) the issuance of Securities shall be limited to a simultaneous
issuance of both Preferred Securities and Common Securities on the Closing
Date;
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(b) acquire the Debentures with the proceeds of the sale of the Securities;
provided, however, that the Administrative Trustees shall cause legal title to
the Debentures to be held of record in the name of the Property Trustee for the
benefit of the Holders;
(c) give the Sponsor and the Property Trustee prompt written notice of the
occurrence of a Special Event;
(d) establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders as to such actions and applicable record dates;
(e) take all actions and perform such duties as may be required of the
Administrative Trustees or the Trust pursuant to the terms of this Trust
Agreement, the Unit Agreement, the Underwriting Agreement, the Remarketing
Agreement and the Securities;
(f) bring or defend, pay, collect, compromise, arbitrate, resort to legal
action, or otherwise adjust claims or demands of or against the Trust ("Legal
Action"), unless pursuant to Section 3.8(f) the Property Trustee has the
exclusive power to bring such Legal Action;
(g) employ or otherwise engage employees and agents (who may be designated
as officers with titles) and managers, contractors, advisors and consultants to
conduct only those services that the Administrative Trustees have authority to
conduct directly, and to pay reasonable compensation for such services;
(h) cause the Trust to comply with the Trust's obligations under the Trust
Indenture Act;
(i) give to the Property Trustee the certificate required by Section
314(a)(4) of the Trust Indenture Act, which certificate may be executed by any
Administrative Trustee;
(j) incur expenses that are necessary or incidental to carry out any of the
purposes of the Trust;
(k) act as, or appoint another Person to act as, Registrar and Transfer
Agent for the Securities or to appoint a Paying Agent for the Securities as
provided in Section 6.14 or to appoint an Authenticating Agent as provided in
Section 6.2;
(l) give prompt written notice to the Property Trustee and to Holders of
any notice received from the Debenture Issuer of its election to defer payments
of interest on the Debentures by extending the interest payment period under the
Indenture;
(m) take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders or to enable the Trust
to effect the purposes for which the Trust was created;
22
(n) take any action not inconsistent with this Trust Agreement or with
applicable law that the Administrative Trustees determine in their discretion to
be necessary or desirable in carrying out the purposes and functions of the
Trust as set forth in Section 3.3 or the activities of the Trust as set out in
this Section 3.7, as long as such action does not materially adversely affect
the interests of the Holders, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified as a grantor trust for United
States federal income tax purposes; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes;
(o) take all action necessary to cause all applicable tax returns and tax
information reports that are required to be filed with respect to the Trust to
be duly prepared and filed by the Administrative Trustees on behalf of the
Trust; and
(p) execute all documents or instruments, including the Underwriting
Agreement, the Remarketing Agreement and the Unit Agreement, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Administrative Trustees shall exercise the powers set forth in this
Section 3.7 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Administrative Trustees shall have no
power to, and shall not, take any action that is inconsistent with the purposes
and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.7, the Administrative Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Administrative Trustees pursuant to this
Section 3.7 shall be reimbursed by the Debenture Issuer.
SECTION 3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Debentures shall be owned by and held of record
in the name of the Property Trustee in trust for the benefit of the Trust and
the Holders. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Debentures to the Administrative Trustees or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee).
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(c) The Property Trustee hereby directs the Paying Agent to establish and
maintain the Property Account in the name of and under the exclusive control of
the Paying Agent on behalf of the Holders and, upon the receipt of payments of
funds made in respect of the Debentures, deposit such funds into the Property
Account and make payments to the Holders from the Property Account in accordance
with Section 6.5. In lieu of the Paying Agent, the Property Account shall be
established and maintained by the Property Trustee or such other Person directed
by the Property Trustee. Funds in the Property Account shall be held uninvested
until disbursed in accordance with this Trust Agreement;
(d) The Property Trustee shall:
(i) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Securities to the extent the
Debentures are redeemed or mature; and
(ii) upon written direction by the Sponsor to dissolve the Trust,
engage in such ministerial activities as shall be necessary or appropriate
to effect the distribution of the Debentures to the Holders in exchange for
the Securities in accordance with Article VIII of this Trust Agreement
(e) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
this Trust Agreement, the Unit Agreement and the Securities.
(f) Subject to Section 3.9(a), the Property Trustee shall take any Legal
Action which arises out of or in connection with:
(i) a Trust Enforcement Event of which a Responsible Officer has
actual knowledge; or
(ii) the Property Trustee's duties and obligations under this Trust
Agreement or the Trust Indenture Act;
provided however, that if a Trust Enforcement Event has occurred and is
continuing and such Trust Enforcement Event is attributable to the failure of
the Debenture Issuer to pay the principal of or premium, if any, or interest on
the Debentures on the date such principal, premium, if any, or interest is
otherwise payable (or in connection with a distribution of Debentures in
exchange for Preferred Securities and repurchase of Debentures under Sections
6.7 and 6.8), a Holder of Preferred Securities may institute a proceeding
directly against the Debenture Issuer to enforce payment to such Holder of the
principal of or premium, if any, or interest on the Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Direct
Action, the Holders of the Common Securities will be subrogated to the rights of
such Holder of Preferred Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Preferred Securities in such Direct Action.
Except as provided in the preceding sentences, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
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(g) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders pursuant to this Trust Agreement; or
(ii) a Successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 5.6.
(h) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Debentures under the Indenture and,
if a Trust Enforcement Event actually known to a Responsible Officer occurs and
is continuing, the Property Trustee shall enforce, for the benefit of Holders,
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
(i) The Property Trustee shall be authorized to undertake any actions set
forth in Section 317(a) of the Trust Indenture Act.
(j) The Property Trustee may authorize one or more Persons to act as
additional Paying Agents and to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities, and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any such additional Paying Agent may be removed by the Property Trustee at
any time, and a successor Paying Agent or additional Paying Agents may be
appointed at any time by the Property Trustee.
(k) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Administrative Trustees
set forth in Section 3.7.
The Property Trustee shall exercise the powers set forth in this Section
3.8 in a manner that is consistent with the purposes and functions of the Trust
set out in Section 3.3, and the Property Trustee shall have no power to, and
shall not, take any action that is inconsistent with the purposes and functions
of the Trust set out in Section 3.3.
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.
(a) The Property Trustee, before the occurrence of any Trust Enforcement
Event and after the cure or waiver of all Trust Enforcement Events that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Trust Agreement and in the Securities, and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If a Trust
Enforcement Event has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this Trust
Agreement, and shall use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(b) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
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(i) prior to the occurrence of a Trust Enforcement Event and after the
cure or waiver of all such Trust Enforcement Events that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Trust Agreement
and in the Securities, and the Property Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Trust Agreement and in the Securities,
and no implied covenants or obligations shall be read into this Trust
Agreement against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement;
provided, however, that in the case of any such certificates or
opinions that by any provision hereof are specifically required to be
furnished to the Property Trustee, the Property Trustee shall be under
a duty to examine such certificates or opinions to determine whether
or not they conform to the requirements of this Trust Agreement (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it without negligence, in good faith
in accordance with the direction of the Holders of not less than a Majority
in Liquidation Amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iv) no provision of this Trust Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers;
(v) the Property Trustee's (or the Paying Agent's) sole duty with
respect to the custody, safe keeping and physical preservation of the
Debentures and the Property Account shall be to deal with such property in
a similar manner as the Property Trustee (or the Paying Agent) deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee (or the Paying
Agent) under this Trust Agreement and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
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(vii) the Property Trustee (or the Paying Agent) shall not be liable
for any interest on any money received by it except as it may otherwise
agree in writing with the Sponsor, and money held by the Property Trustee
(or the Paying Agent) need not be segregated from other funds held by it
except in relation to the Property Account maintained by the Paying Agent
pursuant to Section 3.8(c) and except to the extent otherwise required by
law; and
(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Sponsor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for any default or misconduct of the Administrative
Trustees or the Sponsor.
SECTION 3.10 CERTAIN RIGHTS OF THE PROPERTY TRUSTEE.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may request, in the absence of bad faith on its part, and conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other experts of
its selection and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts' area
of expertise 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 accordance with such advice or opinion. Such counsel may be
counsel to the Sponsor or any of its Affiliates and may include any of its
employees. 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;
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(vi) 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 Holder, unless such Holder shall have provided to the
Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including reasonable
attorneys' fees and expenses and the expenses of the Property Trustee's
agents, nominees or custodians) and liabilities that might be incurred by
it in complying with such request or direction, including such reasonable
advances as may be requested by the Property Trustee; provided, that,
nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the
Property Trustee, upon the occurrence of an Indenture Event of Default, of
its obligation to exercise the rights and powers vested in it by this Trust
Agreement;
(vii) 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, 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 sees fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, custodians, nominees 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;
(ix) any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders, and the signature of the Property
Trustee or its agents alone shall be sufficient and effective to perform
any such action, and no third party shall be required to inquire as to the
authority of the Property Trustee to so act or as to its compliance with
any of the terms and provisions of this Trust Agreement, both of which
shall be conclusively evidenced by the Property Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee:
(A) may request instructions from the Holders which instructions
may only be given by the Holders of the same proportion in liquidation
amount of the Securities as would be entitled to direct the Property
Trustee under the terms of the Securities in respect of such remedy,
right or action;
(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 conclusively relying on or acting in
accordance with such instructions;
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(xi) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Trust Agreement;
(xii) with respect to the calculation of the Accreted Value, the
Property Trustee may conclusively rely upon the calculation thereof
determined by the Calculation Agent; and
(xiii) the Property Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it without negligence, in good faith
and reasonably believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Trust Agreement.
(b) 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. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 3.11 POWERS AND DUTIES OF THE DELAWARE TRUSTEE.
Notwithstanding any other provision of this Trust Agreement other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers
of, nor shall the Delaware Trustee have any of the duties and responsibilities
of, the Administrative Trustees or the Property Trustee described in this Trust
Agreement. Except as set forth in Section 5.2, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 3.12 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Trust Agreement and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Trust
Agreement, the Securities, the Debentures or the Indenture.
SECTION 3.13 DURATION OF THE TRUST.
The Trust, unless dissolved or terminated pursuant to the provisions of
Article VIII, shall have existence up to January 14, 2032.
SECTION 3.14 MERGERS, CONSOLIDATIONS, CONVERSIONS, AMALGAMATIONS OR REPLACEMENTS
OF THE TRUST.
(a) The Trust may not merge with or into, consolidate with, convert into,
amalgamate with, be replaced by or convey, transfer or lease its properties and
assets as an entirety or
29
substantially as an entirety to, any Person, except as described in Section
3.14(b) and 3.14(c) or Section 8.2.
(b) At the request of the Sponsor and with the consent of the
Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees and without the consent of the Holders, the Delaware
Trustee or the Property Trustee, the Trust may merge with or into, consolidate
with, convert into, amalgamate with, be replaced by or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to, a
trust organized as such under the laws of any state; provided that:
(i) if the Trust is not the successor entity, such successor entity
(the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust with
respect to the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities"), so long as the Successor Securities rank the same as the
Securities rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) if the Trust is not the successor entity, the Sponsor expressly
appoints a trustee of the Successor Entity that possesses the same powers
and duties as the Property Trustee as the holder of the Debentures;
(iii) the Successor Securities are, or upon notification of issuance
will be, listed (or eligible for trading) on any national securities
exchange or with any other organization on which the Preferred Securities
are listed or quoted (or otherwise eligible for trading) prior to such
merger, consolidation, conversion, amalgamation, replacement, conveyance,
transfer or lease;
(iv) if the Preferred Securities (including any Successor Securities)
are rated by any nationally recognized statistical rating organization
prior to such transaction, such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded
by any nationally recognized statistical rating organization;
(v) such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders (including any Successor
Securities) in any material respect (other than with respect to any
dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose substantially identical in
all material respects to that of the Trust;
(vii) prior to such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received an
Opinion of
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Counsel to the Trust, rendered by an independent law firm experienced in
such matters, to the effect that:
(A) such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders (including any
Successor Securities) in any material respect (other than with respect
to any dilution of the Holders' interest in the new entity);
(B) following such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease, neither the
Trust nor the Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation, conversion,
amalgamation, replacement, conveyance, transfer or lease, the Trust
(or the Successor Entity) will continue to be classified as a grantor
trust for United States federal income tax purposes;
(viii) if the Trust is not the successor entity, the Sponsor or any
permitted successor or assignee owns all of the common securities of such
Successor Entity and guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided by the
Guarantee; and (ix) the Successor Entity expressly assumes all of the
obligations of the Trust.
(c) Notwithstanding Section 3.14(b), the Trust shall not, except with the
consent of Holders of 100% in aggregate liquidation amount of the Securities,
merge with or into, consolidate with, convert into, amalgamate with, be replaced
by, or convey, transfer or acquire by conveyance, transfer or lease its
properties and assets as an entirety or substantially as an entirety to, any
other Person or permit any other Person to merge with or into, consolidate with,
convert into, amalgamate with, replace it, acquire by conveyance, transfer or
lease its properties and assets as an entirety or substantially as an entirety,
if such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease would cause the Trust or the Successor Entity to
be classified as other than a grantor trust for United States federal income tax
purposes or would cause each Holder of Preferred Securities not to be treated as
owning an undivided beneficial interest in the Debentures.
SECTION 3.15 PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities are then due and payable as therein expressed or by Trust
Agreement or otherwise and irrespective of whether the Property Trustee has made
any demand on the Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise to:
31
(a) file and prove a claim for the whole amount of any Distributions owing
and unpaid in respect of the Securities (or, if the Securities are original
issue discount securities, such portion of the liquidation amount as may be
specified in the terms of such securities) and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding; and
(b) collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee consents to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing contained herein shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt, on behalf of any Holder, any plan
of reorganization, arrangement, adjustment or compensation affecting the
Securities or the rights of any Holder or to authorize the Property Trustee to
vote in respect of the claim of any Holder in any such proceeding.
ARTICLE IV
SPONSOR
SECTION 4.1 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to determine the states in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such states; and
(b) if the Preferred Securities are separately traded from the Units and
the applicable exchange listing requirements are met, to prepare for execution
and filing by the Trust an application to permit the Preferred Securities to
trade or be quoted or listed in or on the New York Stock Exchange or any other
national securities exchange, quotation system or the Nasdaq National Market for
listing or quotation upon notice of issuance of the Preferred Securities.
SECTION 4.2 INDEMNIFICATION AND EXPENSES OF THE TRUSTEES.
The Sponsor, in its capacity as Debenture Issuer, agrees to indemnify the
Property Trustee and the Delaware Trustee for, and to hold each of them harmless
against, any loss,
32
liability or expense incurred without negligence or bad faith on the part of the
Property Trustee or the Delaware Trustee, as the case may be, arising out of or
in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending either of them against
any claim or liability in connection with the exercise or performance of any of
their respective powers or duties hereunder. The provisions of this Section 4.2
shall survive the resignation or removal of the Delaware Trustee or the Property
Trustee and the termination of this Trust Agreement.
SECTION 4.3 RIGHT TO PROCEED.
The Sponsor acknowledges the rights of the Holders of Preferred Securities,
in the event that a failure of the Trust to pay Distributions on the Preferred
Securities is attributable to the failure of the Debenture Issuer to pay
interest or principal on the Debentures, to institute a Direct Action against
the Debenture Issuer for enforcement of its payment obligations on the
Debentures.
ARTICLE V
TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES.
The number of Trustees initially shall be four, unless the Property Trustee
also acts as the Delaware Trustee, in which case the number may be three, and:
(a) at any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities at a meeting of the Holders of the Common
Securities or by written consent in lieu of such meeting; provided, however,
that, the number of Trustees shall in no event be less than three; and provided
further that:
(1) one Trustee shall be the Delaware Trustee;
(2) one Trustee shall be the Property Trustee, which, for so long as
this Trust Agreement is required to qualify as an indenture under the Trust
Indenture Act, shall meet the requirements of applicable law; provided that
the Property Trustee also may serve as Delaware Trustee if it meets the
applicable requirements; and
(3) at least one Trustee shall be an Administrative Trustee who shall
be an employee or officer of, or shall be affiliated with, the Sponsor.
SECTION 5.2 DELAWARE TRUSTEE; ELIGIBILITY.
(a) If required by the Delaware Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
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(i) a natural person who is a resident of the State of Delaware; or
(ii) if not a natural person, an entity which has its principal place
of business in the State of Delaware and otherwise meets the requirements
of applicable law, provided that, if the Property Trustee has its principal
place of business in the State of Delaware and otherwise meets the
requirements of applicable law, the Property Trustee also shall be the
Delaware Trustee and Section 3.11 shall have no application.
(b) The initial Delaware Trustee shall be:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
SECTION 5.3 PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as Property
Trustee (the "Property Trustee"). The Property Trustee shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any state or territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, and subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising
or examining authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Property
Trustee and the Holders of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall comply in all
respects with the provisions of Section 310(b) of the Trust Indenture Act.
(d) The Guarantee shall be deemed to be specifically described in this
Trust Agreement for purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
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(e) The initial Property Trustee shall be:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
SECTION 5.4 QUALIFICATIONS OF ADMINISTRATIVE TRUSTEES GENERALLY.
Each Administrative Trustee (each, an "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 Authorized Officers.
SECTION 5.5 INITIAL ADMINISTRATIVE TRUSTEES.
The initial Administrative Trustees shall be Xxxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxxx, the business address of each of whom is c/o IndyMac Bancorp, Inc., 000
Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
SECTION 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Sections 5.6(b) and 6.11(j) and (k), the Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor;
(ii) unless a Trust Enforcement Event shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders of
a Majority in Liquidation Amount of the Common Securities at a meeting of
the Holders of the Common Securities or by written consent in lieu of such
meeting; and
(iii) if a Trust Enforcement Event shall have occurred and be
continuing after the issuance of the Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a Majority
in Liquidation Amount of the Preferred Securities at a meeting of Holders
of the Preferred Securities or by written consent in lieu of such meeting.
(b) (i) The Property Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to act as
Property Trustee under Section 5.3(a) (a "Successor Property Trustee") has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Administrative Trustees and
the Sponsor.
(ii) The Delaware Trustee shall not be removed in accordance with
Section 5.6(a) until a successor Trustee possessing the qualifications to
act as Delaware Trustee under Section 5.2(a) (a "Successor Delaware
Trustee") has been appointed and
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has accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Administrative Trustees and
the Sponsor.
(c) A Trustee appointed to office shall hold office until a successor shall
have been appointed or until death, dissolution, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting)
by a written instrument signed by such Trustee and delivered to the Sponsor, the
Trust and the other Trustees, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) no such resignation of the Property Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed and has
accepted such appointment by written instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Administrative Trustees, the Sponsor and the resigning Property
Trustee; or
(B) until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the Holders; and
(ii) no such resignation of the Delaware Trustee shall be effective
until a Successor Delaware Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Trust, the Administrative Trustees, the
Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities or, if a Trust Enforcement Event
shall have occurred and be continuing after the issuance of the Securities, the
Holders of the Preferred Securities, shall use their best efforts to promptly
appoint a Successor Property Trustee or Successor Delaware Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee, as the
case may be, shall have been appointed and accepted appointment as provided in
this Section 5.6 within 30 days after delivery of an instrument of resignation
or removal, the Property Trustee or Delaware Trustee resigning or being removed,
as applicable, may at the expense of the Sponsor petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as applicable. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper and prescribe, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 5.7 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the
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Administrative Trustees or, if there are more than two, a majority of the
Administrative Trustees shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance with
Section 5.6.
SECTION 5.8 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to dissolve, terminate or annul the Trust or terminate this Trust
Agreement. 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 5.6, the Administrative Trustees in office,
regardless of their number, 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 5.9 MEETINGS.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Trust Agreement, any action of the Administrative
Trustees may be taken at a meeting by vote of a majority of the Administrative
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or without a meeting
by the unanimous written consent of the Administrative Trustees. In the event
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
SECTION 5.10 DELEGATION OF POWER BY THE ADMINISTRATIVE TRUSTEES.
(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
power for the purpose of executing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.7.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust 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
37
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 5.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person, as the case may be, may be
merged or converted or with which such Trustee 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 under this Trust Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided such
Person shall be otherwise qualified and eligible under this Article V.
ARTICLE VI
THE SECURITIES
SECTION 6.1 GENERAL PROVISIONS REGARDING THE SECURITIES.
(a) The Administrative Trustees shall issue on behalf of the Trust one
class of Preferred Securities representing undivided beneficial interests in the
assets of the Trust (the "Preferred Securities") and one class of common
securities representing undivided beneficial interests in the assets of the
Trust (the "Common Securities").
(i) The Preferred Securities of the Trust shall number 3,500,000 (or
4,000,000 if the Managing Underwriter's over-allotment option with respect
to the Units is exercised in full) and shall have an aggregate stated
liquidation amount with respect to the assets of the Trust of $175,000,000
(or $200,000,000 if the Managing Underwriter's over-allotment option with
respect to the Units is exercised in full), a stated liquidation amount
with respect to the assets of the Trust of $50 per Preferred Security and
an accreted value at any time equal to the Accreted Value. The Preferred
Securities are hereby designated for the purposes of identification only as
the Preferred Securities. The Preferred Securities Certificates evidencing
the Preferred Securities shall be substantially in the form of Exhibit A,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
(ii) The Common Securities of the Trust shall number 108,248 (or
123,712 if the Managing Underwriter's over-allotment option with respect to
the Units is exercised in full) and shall have an aggregate liquidation
amount with respect to the assets of the Trust of $5,412,400 (or $6,185,600
if the Managing Underwriter's over-allotment option with respect to the
Units is exercised in full), a stated liquidation amount with respect to
the assets of the Trust of $50 per Common Security and an accreted value at
any time equal to the Accreted Value. The Common Securities are hereby
designated for the purposes of identification only as the Common
Securities. The Common Securities Certificates evidencing the Common
Securities shall be substantially in the form of Exhibit B, with such
changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
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(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Trust
Agreement, the Securities so issued shall be deemed to be validly issued,
fully paid and nonassessable beneficial interests in the assets of the
Trust.
(d) Each Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Trust
Agreement, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Trust Agreement, the Guarantee, the
Indenture and the Debentures.
(e) Payment of Distributions on, and any payment of the Redemption
Price upon a redemption of, the Securities shall be made on a Pro Rata
basis based on the liquidation amount of such Securities; provided that if,
on any date on which payment of a Distribution or the Redemption Price is
to be made, an Indenture Event of Default has occurred and is continuing,
then such payment shall not be made on any of the Common Securities, and no
other payment on account of the redemption, liquidation or other
acquisition of such Common Securities shall be made, until all accumulated
and unpaid Distributions or payments of the Redemption Price, as the case
may be, on all of the outstanding Preferred Securities for which
Distributions are to be paid or that have been called for redemption, as
the case may be, are fully paid. All funds available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price of, the Preferred Securities then
due and payable.
(f) The Holders of the Securities shall not have any preemptive or
similar rights.
SECTION 6.2 EXECUTION AND AUTHENTICATION.
(a) Each Certificate shall be signed on behalf of the Trust by an
Administrative Trustee by manual or facsimile signature. If any Administrative
Trustee of the Trust who shall have signed any of the Securities shall cease to
be such Administrative Trustee before the Securities so signed shall be
delivered by the Trust, such Securities nevertheless may be delivered as though
the person who signed such Securities had not ceased to be such Administrative
Trustee; and any Securities may be signed on behalf of the Trust by such persons
who, at the actual date of execution of such Security, shall be the
Administrative Trustees of the Trust, although at the date of the execution and
delivery of this Trust Agreement any such person was not such an Administrative
Trustee.
(b) A Preferred Securities Certificate shall not be valid until
authenticated by the manual or facsimile signature of an authorized signatory of
the Property Trustee. The signature shall be conclusive evidence that such
Preferred Securities Certificate has been authenticated under this Trust
Agreement.
Upon a written order of the Trust signed by one Administrative Trustee, the
Property Trustee shall authenticate the Preferred Securities Certificates for
original issue. The aggregate
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number of Preferred Securities outstanding at any time shall not exceed the
aggregate stated liquidation amount set forth in Section 6.1(a)(i).
The Property Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Property Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith shall determine that such action would expose the Property
Trustee to personal liability to existing Holders.
The Property Trustee may appoint an Authenticating Agent acceptable to the
Trust to authenticate Preferred Securities Certificates. An Authenticating Agent
may authenticate Preferred Securities Certificates whenever the Property Trustee
may do so. Each reference in this Trust Agreement to authentication by the
Property Trustee includes authentication by such agent. An Authenticating Agent
has the same rights as the Property Trustee to deal with the Sponsor or an
Affiliate.
The Bank of New York is hereby appointed as the initial Authenticating
Agent.
SECTION 6.3 FORM AND DATING.
The Preferred Securities shall be substantially in the form of Exhibits A
and the Common Securities shall be substantially in the form of Exhibit B. The
Property Trustee's certificate of authentication shall be substantially in the
form set forth in Exhibit A.
The terms and provisions of the Securities set forth in Exhibits A and B
are part of the terms of this Trust Agreement and to the extent applicable, the
Property Trustee, the Authenticating Agent and the Sponsor, by their execution
and delivery of this Trust Agreement, expressly agree to such terms and
provisions and to be bound thereby.
The Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by their execution thereof. The Certificates may have
letters, CUSIP or other numbers, notations or other marks of identification or
designation and such legends or endorsements as the Administrative Trustees may
deem appropriate, or as may be required by law, stock exchange rule, agreements
to which the Trust is subject, if any, or usage (provided that any such
notation, legend or endorsement is in a form acceptable to the Trust).
Each Security shall be dated the date of its authentication.
Upon the execution and delivery of this Trust Agreement, the Preferred
Securities shall be issued as a component of a Unit, in fully registered form
without Distribution coupons (the "Global Unit Certificate"), substantially in
the forms set forth in Exhibit A of the Unit Agreement. The Preferred Securities
also initially shall be issued in the forms of one or more global Certificates
in fully registered form without Distribution coupons and with the appropriate
global legends (each, a "Global Preferred Security"), substantially in the forms
of Exhibit A. The Global Preferred Securities shall be registered in the name of
the Clearing Agency or a nominee of the Clearing Agency, duly executed by the
Trust and authenticated by the Property Trustee, and deposited on behalf of the
purchasers of the Preferred Securities represented thereby with the Paying
Agent, at the Corporate Trust Office, as custodian for the Clearing Agency. The
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Global Preferred Securities shall represent such of the outstanding Preferred
Securities as shall be specified in the "Schedule of Increases or Decreases in
Global Preferred Security" attached thereto (or on the books and records of the
Property Trustee and the Clearing Agency or its nominee). The Global Preferred
Securities shall initially represent no Preferred Securities. Thereafter, the
number of Preferred Securities represented by the Global Preferred Securities
may from time to time be increased or decreased by adjustments made on the
"Schedule of Increases or Decreases in Global Preferred Security" attached
thereto (or books and records of the Property Trustee and the Clearing Agency or
its nominee) as hereinafter provided.
Except as provided in Sections 6.22(e) and 6.22(f), Preferred Security
Beneficial Owners shall not be entitled to receive physical delivery of
definitive, fully registered Preferred Securities Certificates ("Definitive
Preferred Securities").
SECTION 6.4 THE SPONSOR'S PURCHASE OF THE COMMON SECURITIES.
(a) On the Closing Date or any Option Closing Date, the Sponsor shall
purchase all of the Common Securities issued by the Trust, in an aggregate
liquidation amount equal to at least 3% of the total capital of the Trust, at
such time as the Preferred Securities are sold and issued. The aggregate stated
liquidation amount of the Common Securities outstanding at any time shall not be
less than 3% of the total capital of the Trust.
(b) For so long as the Preferred Securities remain outstanding, the Sponsor
shall covenant:
(i) to maintain, directly or indirectly, 100% ownership of the Common
Securities; provided, however, that any permitted successor of the Sponsor
(in its capacity as Debenture Issuer) under the Indenture may succeed to
the Sponsor's ownership of such Common Securities;
(ii) to cause the Trust to (a) remain a statutory business trust,
except in connection with the distribution of the Debentures to the
Holders, the redemption of all of the Securities, or certain mergers,
consolidations, conversions or amalgamations, each as permitted by this
Trust Agreement, (b) to the fullest extent permitted by law, not to
voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by this Trust Agreement and (c) otherwise continue to be
classified as a grantor trust for United States federal income tax
purposes;
(iii) to use its commercially reasonable efforts to ensure that the
Trust will not be an Investment Company required to be registered under the
Investment Company Act; and
(iv) not to take any action that would be reasonably likely to cause
the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes.
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SECTION 6.5 DISTRIBUTIONS.
(a) Holders shall be entitled to receive Distributions that shall be
payable at a rate per annum of 6% (the "Coupon Rate") of the stated liquidation
amount of $50 per Security from and including November 14, 2001 to, but
excluding, the Remarketing Date, and at the Reset Rate of the Accreted Value of
the Security on the Remarketing Date to, but excluding, the date of redemption.
At all times, the Distribution rate shall correspond to the interest rate on the
Debentures. The amount of a Distribution payable shall be computed:
(i) for any full 90-day quarterly Distribution period, on the basis of
a 360-day year consisting of twelve 30-day months;
(ii) for any period shorter than a full 90-day quarterly Distribution
period, on the basis of a 30-day month; and
(iii) for any period shorter than a 30-day month, on the basis of the
actual number of days elapsed in the 30-day month.
Subject to Section 6.1(e), Distributions shall be made on the Securities on a
Pro Rata basis. Distributions shall be payable on the Distribution Dates only to
the extent that payments are made to the Trust in respect of the Debentures held
by the Property Trustee and to the extent the Trust has funds available for the
payment of such Distributions in the Property Account.
(b) Distributions on the Securities shall accumulate from the date of
original issue, shall be cumulative and shall be payable quarterly in arrears on
February 1, May 1, August 1 and November 1 of each year (each, a "Distribution
Date"), commencing on February 1, 2002, when, as and if available for payment,
except as otherwise provided in this Trust Agreement. Interest not paid on the
Debentures on the scheduled Interest Payment Dates shall accrue and compound
quarterly at the Coupon Rate of the aggregate principal amount or the Reset Rate
of the Accreted Value on the Remarketing Date, as applicable, and, as a result,
Distributions not paid on the scheduled Distribution Dates shall accumulate and
compound quarterly at the Coupon Rate of the aggregate stated liquidation amount
or the Reset Rate of the Accreted Value on the Remarketing Date, as applicable
("Compounded Distributions"). The terms "Distribution" shall mean ordinary
quarterly distributions together with any Compounded Distributions.
(c) As long as no Indenture Event of Default has occurred and is continuing
and as long as a Failed Remarketing has not occurred, the Debenture Issuer has
the right under the Indenture to defer payments of interest on the Debentures by
extending the interest payment period, at any time and from time to time, on the
Debentures for a period not exceeding 20 consecutive quarters (each, an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures, provided that no Extension Period shall end on a date
other than an Interest Payment Date or extend beyond the stated maturity of the
Debentures. Upon the occurrence of a Failed Remarketing, any such Extension
Period shall terminate and interest shall be payable on the next Interest
Payment Date. As a consequence of such deferral, Distributions also shall be
deferred. Despite such deferral, interest on the Debentures shall continue to
accrue with additional interest thereon (to the extent permitted by applicable
law) and, as a result, Distributions shall continue to accumulate with
additional Distributions thereon
42
(to the extent permitted by applicable law) at the Coupon Rate of the stated
liquidation amount or at the Reset Rate of the Accreted Value on the Remarketing
Date, as the case may be, compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the Debenture Issuer may
further defer payments of interest by further extending such Extension Period;
provided that such Extension Period, together with all such previous and further
extensions of such Extension Period, may not exceed 20 consecutive quarters or
extend beyond the stated maturity date of the Debentures. Upon the termination
of any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
(d) Distributions on the Securities shall be payable to the Holders as they
appear on the books and records of the Trust at the close of business on the
relevant Regular Record Dates; provided that Distributions payable on the
Remarketing Settlement Date shall be payable to the Holders as they appear on
the books and records of the Trust at the close of business on the Special
Record Date. If the Preferred Securities are represented by one or more Global
Preferred Securities, the relevant Regular Record Dates shall be the close of
business on the Business Day preceding the corresponding Distribution Date,
unless a different Regular Record Date is established or provided for the
corresponding Interest Payment Date on the Debentures. If the Preferred
Securities are not represented by one or more Global Preferred Securities, the
relevant Regular Record Dates for the Preferred Securities shall be at least one
Business Day prior to the corresponding Distribution Dates, or such other dates
as may be selected by the Administrative Trustees. The record dates for the
Common Securities shall be the same as the record dates for the Preferred
Securities. At all times, the Distribution Dates shall correspond to the
Interest Payment Dates on the Debentures.
Distributions payable on any Securities that are not punctually paid on any
Distribution Date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, shall cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution instead shall be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture for payment of the corresponding
defaulted interest on the Debentures.
(e) If any date on which a Distribution is payable on the Securities is not
a Business Day, payment of the Distribution payable on such date will be made on
the next day that is a Business Day (and without any additional Distribution or
other payment in respect of any such delay), except that if such Business Day is
in the next calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on the date
such payment was originally payable.
(f) If and to the extent that the Debenture Issuer makes a payment of
principal of and premium, if any, and interest on the Debentures held by the
Property Trustee (the amount of any such payment being a "Payment Amount"), the
Property Trustee shall and is directed, to the extent funds are available for
that purpose, to make a distribution of the Payment Amount to the Holders on a
Pro Rata basis, subject to Section 6.1(e).
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(g) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed on a Pro Rata basis among the Holders subject to 6.1(e).
SECTION 6.6 REMARKETING.
(a) In connection with a Remarketing of the Preferred Securities:
(i) in connection with a Remarketing upon a Trading Remarketing Event
or a Legal Cause Remarketing Event, the Accreted Value of the Debentures as
of the end of the day on the day next preceding the Remarketing Date shall
become due on the date which is 60 days following the Remarketing Date,
and, as a result, the Accreted Value of the Securities as of the end of the
day on the day next preceding the Remarketing Date shall be redeemed on the
date which is 60 days following the Remarketing Date;
(ii) on the Remarketing Date, the rate of interest per annum on the
Accreted Value of the Debentures shall become the Reset Rate on the
Accreted Value of the Securities established in the Remarketing of the
Preferred Securities, and, as a result, the Distribution rate per annum on
the Accreted Value of the Securities shall become the Reset Rate
established in the Remarketing of the Preferred Securities;
(iii) on the Remarketing Settlement Date, interest accrued and unpaid
on the Debentures from and including the immediately preceding Interest
Payment Date to, but excluding, the Remarketing Settlement Date shall be
payable to the holders of the Debentures on the Special Record Date, and,
as a result, Distributions accumulated and unpaid on the Securities from
and including the immediately preceding Distribution Date to, but
excluding, the Remarketing Settlement Date shall be payable to the Holders
of the Securities on the Special Record Date;
(iv) in connection with a Remarketing upon a Trading Remarketing Event
or a Legal Cause Remarketing Event, the Sponsor shall be obligated to
redeem the Warrants on the Remarketing Settlement Date at a redemption
price per Warrant equal to the Warrant Value as of the end of the day on
the day next preceding the Remarketing Date; and
(v) on and after the Remarketing Date, the Warrants shall be
exercisable at the Exercise Price.
(b) The proceeds from the Remarketing of the Preferred Securities shall be
paid to the selling Holders, provided that, upon a Trading Remarketing Event or
a Legal Cause Remarketing Event, the proceeds from the Remarketing of the
Preferred Securities that are held pursuant to the Unit Agreement for which the
holders of such Units have elected to exercise their Warrants shall be paid
directly to the Warrant Agent to satisfy in full the Exercise Price of the
Warrants held by such holders.
(c) In connection with a Remarketing of the Preferred Securities and at any
time thereafter, a purchaser may exchange its Preferred Securities for its pro
rata share of Debentures. In such event, the Administrative Trustees shall cause
Debentures held by the Property Trustee,
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having an aggregate Accreted Value equal to the aggregate Accreted Value of the
Preferred Securities purchased by such purchaser and with accrued and unpaid
interest equal to the accumulated and unpaid Distributions on the Preferred
Securities purchased by such purchaser, to be distributed to such purchaser in
exchange for such Holders' pro rata interest in the Trust. In such event, the
Debentures held by the Trust shall decrease by the amount of Debentures
delivered to the purchaser of Preferred Securities.
(d) Upon the occurrence of a Trading Remarketing Event, the Sponsor shall
cause a Remarketing of the Preferred Securities and select a Remarketing Date,
provided that the following conditions precedent are satisfied:
(i) as of the date of which the Sponsor causes a Remarketing of the
Preferred Securities, the Closing Price of a share of the Common Stock
exceeds and has exceeded for at least 20 Trading Days within the
immediately preceding 30 consecutive Trading Days, $37.57 per share.
(ii) as of the date of which the Sponsor causes a Remarketing of the
Preferred Securities and on the Remarketing Date, no Trust Enforcement
Event or deferral of Distributions to Holders of the Preferred Securities
shall have occurred and be continuing;
(iii) as of the date of which the Sponsor causes a Remarketing of the
Preferred Securities and on the Remarketing Date, a registration statement
covering the issuance and sale of Common Stock to the holders of Warrants
upon exercise of such Warrants shall be effective under the Securities Act,
or the issuance and sale of Common Stock to the holders of Warrants upon
exercise of such Warrants shall be exempt from registration requirements
under the Securities Act; and
(iv) on the Remarketing Date, the Legal Requirements shall have been
satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date, provided that the following conditions precedent are satisfied on the
Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) pursuant to the Warrant Agreement, a redemption of the
Warrants of those holders who have not elected to exercise their
Warrants prior to or on such date shall have been consummated.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
of the Preferred Securities cannot occur and the contemporaneous redemption of
Warrants shall be canceled; provided, however, that if:
(x) the Remarketing cannot occur because of a failure to satisfy
either the Warrant Requirements or the Legal Requirements as of or on the
relevant date or dates; and
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(y) the Sponsor is using its best efforts to satisfy such
Requirements;
the Sponsor shall have the right to cause a Remarketing of the Preferred
Securities on a subsequent date which is no later than September 13, 2031,
provided that all applicable requirements and conditions precedents (including
the timely occurrence of a Trading Remarketing Event) are satisfied.
(e) Upon the occurrence of a Legal Cause Remarketing Event, the Sponsor
shall cause a Remarketing of the Preferred Securities and select a Remarketing
Date, provided that the following conditions precedent are satisfied:
(i) as of the date of which the Sponsor causes a Remarketing of the
Preferred Securities and on the Remarketing Date, no Trust Enforcement
Event shall have occurred and be continuing;
(ii) as of the date of which the Sponsor causes a Remarketing of the
Preferred Securities and on the Remarketing Date, a registration statement
covering the issuance and sale of Common Stock to the holders of Warrants
upon exercise of such Warrants shall be effective under the Securities Act,
or the issuance and sale of Common Stock to the holders of Warrants upon
exercise of such Warrants shall be exempt from registration requirements
under the Securities Act; and
(iii) on the Remarketing Date, the Legal Requirements shall have been
satisfied.
The settlement of the Remarketing shall occur on the Remarketing Settlement
Date, provided that the following conditions precedent are satisfied on the
Remarketing Settlement Date:
(A) the Warrant Requirements shall be satisfied; and
(B) a redemption of the Warrants of those holders who have not
elected to exercise their Warrants prior to or on such date shall have
been consummated pursuant to the Warrant Agreement.
If any of the foregoing conditions precedent are not satisfied, the Remarketing
cannot occur and the contemporaneous redemption of Warrants shall be canceled;
provided, however, that if:
(x) the Remarketing cannot occur because of a failure to satisfy
either the Warrant Requirements or the Legal Requirements as of or on the
relevant date or dates; and
(y) the Sponsor is using its best efforts to satisfy such
Requirements;
the Sponsor shall have the right to cause a Remarketing of the Preferred
Securities on a subsequent date which is no later than September 13, 2031,
provided that all applicable requirements and conditions precedents (including
the timely occurrence of a Legal Cause Remarketing Event) are satisfied.
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(f) On the Maturity Remarketing Date, a Remarketing of the Preferred
Securities shall occur, provided that on such date, the Legal Requirements (to
the extent applicable) shall have been satisfied.
If, for any reason, a Remarketing of the Preferred Securities does not
occur on the Maturity Remarketing Date, the Administrative Trustees shall give
notice thereof to all Holders of Preferred Securities (whether or not held
pursuant to the Unit Agreement) prior to the close of business on the following
Business Day. In such event:
(i) the rate of interest per annum on the Accreted Value of the
Debentures (which, on the Maturity Remarketing Date, shall be equal to the
principal amount of the Debentures) shall become the Reset Rate, and, as a
result, the rate of Distribution per annum on the Accreted Value of the
Securities (which, on the Maturity Remarketing Date, shall be equal to the
stated liquidation amount of the Securities) shall become the Reset Rate;
and
(ii) pursuant to the Indenture, the Debenture Issuer no longer shall
have the option to defer payments of interest on the Debentures.
(g) Upon the occurrence of a Trading Remarketing Event or a Legal Cause
Remarketing Event and the election by the Sponsor to cause a Remarketing of the
Preferred Securities, or upon the Maturity Remarketing Date, as long as the
Preferred Securities are evidenced by Global Preferred Securities, deposited
with the Clearing Agency, the Sponsor shall request, not later than four nor
more than 20 days prior to the Remarketing Date, that the Clearing Agency notify
the Holders of the Preferred Securities of the Remarketing of the Preferred
Securities and of the procedures that must be followed if such Holder of
Preferred Securities wishes to elect not to participate in the Remarketing of
the Preferred Securities.
(h) Upon the occurrence of a Remarketing Event, all of the Preferred
Securities (excluding the Preferred Securities as to which the Holders thereof
have elected not to participate in the Remarketing) shall be remarketed by the
Remarketing Agent. Not later than 5:00 p.m. (New York City time) on the Business
Day preceding the Remarketing Date, each Holder of Preferred Securities may
elect not to have the Preferred Securities held by such Holder remarketed in the
Remarketing. Holders of Preferred Securities that are not held pursuant to the
Unit Agreement shall give such notice to the Property Trustee, and Holders of
Preferred Securities that are held pursuant to the Unit Agreement shall give
such notice to the Unit Agent. Holders of Preferred Securities that are not held
pursuant to the Unit Agreement and Holders of Preferred Securities that are held
pursuant to the Unit Agreement that do not give notice of their intention not to
participate in the Remarketing shall be deemed to have consented to the
disposition of their Preferred Securities in the Remarketing. Any such notice
shall be irrevocable and may not be conditioned upon the level at which the
Reset Rate is established in the Remarketing.
Not later than 5:00 p.m. (New York City time) on the Business Day preceding
the Remarketing Date, the Property Trustee and the Unit Agent, as applicable,
based on the notices received by it prior to such time, shall notify the Trust,
the Sponsor and the Remarketing Agent of the number of Preferred Securities to
be tendered for purchase in the Remarketing.
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(i) The right of each Holder to have Preferred Securities tendered for
purchase shall be limited to the extent that:
(i) the Remarketing Agent conducts a Remarketing pursuant to the terms
of the Remarketing Agreement;
(ii) the Remarketing Agent is able to find a purchaser or purchasers
for the Preferred Securities deemed tendered; and
(iii) such purchaser or purchasers deliver the purchase price therefor
to the Remarketing Agent.
(j) On the Remarketing Date, the Remarketing Agent shall use commercially
reasonable efforts to remarket the Preferred Securities deemed tendered for
purchase at a price equal to:
(i) in connection with a Remarketing upon a Trading Remarketing Event
or a Legal Cause Remarketing Event, 100% of the aggregate Accreted Value as
of the end of the day on the day next preceding the Remarketing Date; and
(ii) on the Maturity Remarketing Date, 100% of the stated liquidation
amount.
(k) If, as a result of the efforts described in 6.6(j), the Remarketing
Agent determines that it will be able to remarket all of the Preferred
Securities deemed tendered for purchase at the purchase price set forth in
Section 6.6(j) prior to 4:00 p.m. (New York City time) on the Remarketing Date,
the Remarketing Agent shall determine the Reset Rate, which shall be the rate
per annum (rounded to the nearest one-thousandth (0.001) of 1% per annum) that
the Remarketing Agent determines, in its sole judgment, to be the lowest rate
per annum that will enable it to remarket all of the Preferred Securities deemed
tendered for Remarketing.
(l) If none of the Holders of the Preferred Securities or the holders of
the Units elects to have their Preferred Securities remarketed in the
Remarketing, the Reset Rate shall equal the rate determined by the Remarketing
Agent, in its sole discretion, as the rate that would have been established had
a Remarketing been held on the Remarketing Date, and the related modifications
to the other terms of the Preferred Securities and to the terms of the
Debentures and the Warrants shall be effective as of the Remarketing Date.
(m) If, by 4:00 p.m. (New York City time) on the Remarketing Date, the
Remarketing Agent is unable to remarket all of the Preferred Securities deemed
tendered for purchase, a "Failed Remarketing" shall be deemed to have occurred
and the Remarketing Agent shall so advise by telephone the Clearing Agency, the
Property Trustee, the Debenture Trustee, the Administrative Trustees on behalf
of the Trust and the Sponsor. The Administrative Trustees shall then give notice
of the Failed Remarketing to the Holders of the Preferred Securities prior to
the close of business on the Business Day following the Failed Remarketing Date.
In the event of a Failed Remarketing:
(i) the Accreted Value of the Debentures as of the end of the day on
the day next preceding the Remarketing Date shall become due on the date
which is 60 days
48
following the Failed Remarketing Date, and, as a result, the Accreted Value
of the Securities as of the end of the day on the day next preceding the
Remarketing Date shall be redeemed on the date which is 60 days following
the Failed Remarketing Date;
(ii) the rate of interest per annum on the Accreted Value of the
Debentures shall become the Reset Rate, and, as a result, the rate of
Distribution per annum on the Accreted Value of the Securities shall become
the Reset Rate; and
(iii) pursuant to the Indenture, the Debenture Issuer no longer shall
have the option to defer payments of interest on the Debentures.
Notwithstanding a Failed Remarketing, subject to the satisfaction of the
Legal Requirements, the Warrants shall be redeemed at the Warrant Value and
a holder of Warrants shall have the option to exercise its Warrants in lieu
of such redemption, as provided in the Unit Agreement and the Warrant
Agreement.
(n) By approximately 4:30 p.m. (New York City time) on the Remarketing
Date, provided that there has not been a Failed Remarketing, the Remarketing
Agent shall advise, by telephone:
(i) the Clearing Agency, the Property Trustee, the Debenture Trustee,
the Trust and the Sponsor of the Reset Rate determined in the Remarketing
and the number of Preferred Securities sold in the Remarketing;
(ii) each purchaser (or the Clearing Agency Participant thereof) of
the Reset Rate and the number of Preferred Securities such purchaser is to
purchase; and
(iii) each purchaser to give instructions to its Clearing Agency
Participant to pay the purchase price on the Remarketing Settlement Date in
same day funds against delivery of the Preferred Securities purchased
through the facilities of the Clearing Agency.
(o) In accordance with the Clearing Agency's normal procedures, on the
Remarketing Settlement Date, the transactions described above with respect to
each Preferred Security deemed tendered for purchase and sold in the Remarketing
shall be executed through the Clearing Agency, and the accounts of the
respective Clearing Agency Participants shall be debited and credited and such
Preferred Securities delivered by book-entry as necessary to effect purchases
and sales of such Preferred Securities. The Clearing Agency shall make payment
in accordance with its normal procedures.
(p) If any Holder of the Preferred Securities selling such Preferred
Securities (or any holder of Units selling the Preferred Securities that are
held pursuant to the Unit Agreement) in the Remarketing fails to deliver such
Preferred Securities, the Clearing Agency Participant of such selling holder and
of any other Person that was to have purchased Preferred Securities in the
Remarketing may deliver to any such other Person a number of Preferred
Securities that is less than the number of Preferred Securities that otherwise
was to be purchased by such Person. In such event, the number of Preferred
Securities to be so delivered shall be determined by such Clearing Agency
Participant, and delivery of such lesser number of Preferred Securities shall
constitute good delivery.
49
(q) The Remarketing Agent is not obligated to purchase any Preferred
Securities that otherwise would remain unsold in the Remarketing. Neither the
Trust, any Trustee, the Sponsor nor the Remarketing Agent shall be obligated in
any case to provide funds to make payment upon tender of the Preferred
Securities for Remarketing.
(r) Under the Remarketing Agreement, the Sponsor, in its capacity as
Debenture Issuer, shall be liable for, and shall pay, any and all costs and
expenses incurred in connection with the Remarketing, and the Trust shall not
have any liabilities for such costs and expenses.
(s) The tender and settlement procedures set in this Section 6.6, including
provisions for payment by purchasers of the Preferred Securities in the
Remarketing, shall be subject to modification to the extent required by the
Clearing Agency or if the book-entry system is no longer available for the
Preferred Securities at the time of the Remarketing, to facilitate the tendering
and remarketing of the Preferred Securities in definitive form. In addition, the
Remarketing Agent may modify the settlement procedures set forth herein in order
to facilitate the settlement process.
SECTION 6.7 LIMITED RIGHT TO REQUIRE EXCHANGE OF PREFERRED SECURITIES AND
REPURCHASE OF DEBENTURES.
(a) Upon the exercise of Warrants by a holder of Units on a date other than
a Remarketing Settlement Date, such Holder shall have the right (the "Repurchase
Right"), on the next Required Repurchase Date which is no less than 60 days
following the exercise date of such Warrants, to require the Trust to exchange
the Preferred Securities for Debentures having an Accreted Value on the date of
exchange equal to the Accreted Value of such Preferred Securities on such
exchange date plus accumulated and unpaid distributions (including deferred
distributions), and to require the Debenture Issuer to repurchase such
Debentures on the applicable Required Repurchase Date.
(b) To exercise its Repurchase Right, a Unit holder shall:
(i) provide the Administrative Trustees and the Debenture Issuer with
notice of its election to exercise its Repurchase Right no less than 30
days prior to the Required Repurchase Date on which such repurchase is to
be effected;
(ii) specify the number of Preferred Securities to be exchanged for
Debentures by the Trust; and
(iii) certify to the Administrative Trustees and the Debenture Issuer
that such holder (A) has exercised the Warrants that are held pursuant to
the Unit Agreement, each of which has an Exercise Price no less than the
Accreted Value of the Preferred Security sought to be exchanged, and (B) is
the beneficial owner of the Preferred Securities to be exchanged.
(c) No less than three Business Days prior to the applicable Required
Repurchase Date:
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(i) if the Preferred Securities to be exchanged are represented by a
Global Preferred Security, the Property Trustee shall make, in accordance
with the instructions of the Exchange Agent, the necessary endorsement to
the "Schedule of Increases or Decreases in Global Preferred Security"
attached to the Global Preferred Security to reduce the amount of Preferred
Securities represented thereby and shall instruct the Debenture Trustee to
transfer to the Exchange Agent a corresponding Accreted Value of
Debentures; and
(ii) if the Preferred Securities to be exchanged are represented by
Definitive Preferred Securities, (x) the Holder of such Preferred
Securities shall present such Definitive Preferred Securities to the
Property Trustee for cancellation and the Property Trustee shall so notify
the Registrar and (y) the Property Trustee shall instruct the Debenture
Trustee to deliver to such Holder, definitive Debentures having an Accreted
Value equal to the Accreted Value of the cancelled Preferred Securities of
such Holder.
(d) On the applicable Required Repurchase Date, the Debenture Issuer shall
repurchase, pursuant to the Indenture, the Debentures which were the subject of
an exchange notice received by the Debenture Issuer pursuant to Section 6.7(b)
at the Repurchase Price.
SECTION 6.8 CHANGE OF CONTROL RIGHT TO REQUIRE EXCHANGE OF PREFERRED SECURITIES
AND REPURCHASE OF DEBENTURES.
(a) Upon the occurrence of a Change of Control, each Holder of a Preferred
Security shall have the right (a "Change of Control Repurchase Right") to
exchange any or all of such Holder's Preferred Securities for Debentures having
an Accreted Value on the date of exchange equal to the Accreted Value of such
Preferred Securities on such exchange date, and to require the Debenture Issuer
to repurchase such Debentures on the Change of Control Repurchase Date.
(b) Within 30 days after the occurrence of a Change of Control, the Sponsor
shall give notice to each Holder of a Preferred Security and the Property
Trustee of the transaction that constitutes the Change of Control, identifying
such transaction as constituting a Change of Control and setting forth the
resulting repurchase right (the date of such notice, the "Change of Control
Notice Date").
(c) To exercise its Change of Control Repurchase Right, a Holder of
Preferred Securities shall:
(i) provide the Trust, the Debenture Issuer, the Property Trustee and
the Exchange Agent with irrevocable notice of its election to exercise its
Change of Control Repurchase Right no earlier than 60 days and no later
than 90 days following the Change of Control Notice Date; and
(ii) specify the number of Preferred Securities to be exchanged for
Debentures by the Trust.
(d) No less than three Business Days prior to the Change of Control
Repurchase Date:
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(i) if the Preferred Securities to be exchanged are represented by a
Global Preferred Security, the Property Trustee shall make, in accordance
with the instructions of the Exchange Agent, the necessary endorsement to
the "Schedule of Increases or Decreases in Global Preferred Security"
attached to the Global Preferred Security to reduce the amount of Preferred
Securities represented thereby and shall instruct the Debenture Trustee to
transfer to the Exchange Agent a corresponding Accreted Value of
Debentures; and
(ii) if the Preferred Securities to be exchanged are represented by
Definitive Preferred Securities, (x) the Holder of such Preferred
Securities shall present such Definitive Preferred Securities to the
Property Trustee for cancellation and the Property Trustee shall so notify
the Registrar and (y) the Property Trustee shall instruct the Debenture
Trustee to deliver to such Holder, definitive Debentures having an Accreted
Value equal to the Accreted Value of the cancelled Preferred Securities of
such Holder.
(e) On the Change of Control Repurchase Date, the Debenture Issuer shall
repurchase, pursuant to the Indenture, the Debentures which were the subject of
an exchange notice received by the Debenture Issuer pursuant to Section 6.8(c)
at the Change of Control Repurchase Price.
SECTION 6.9 REDEMPTION.
(a) Except as provided in Sections 6.7 and 6.8, upon the repayment of the
Debentures held by the Trust, in whole or in part, whether at Stated Maturity
(as adjusted in connection with a Remarketing, if applicable) or otherwise, the
proceeds from such repayment shall be simultaneously applied by the Property
Trustee (subject to the Property Trustee having received notice no later than 45
days prior to such repayment) to redeem a Like Amount of the Securities at a
redemption price equal to the redemption price in respect of the Debentures plus
an amount equal to accumulated and unpaid Distributions on the Securities
through the date of redemption (the "Redemption Price"). The Redemption Price
shall be payable on the date of redemption (the "Redemption Date") only to the
extent that the Trust has sufficient funds available for the payment of such
Redemption Price.
(b) If the Debentures are repaid in part, the Securities shall be redeemed
in part. Except as provided in Section 6.13, the proceeds from such repayment of
Debentures shall be allocated on a Pro Rata basis to the redemption of the
Securities.
(c) The procedure with respect to redemptions of Securities shall be as
follows:
(i) Notice of any redemption of Securities (a "Redemption Notice"),
which notice shall be irrevocable, shall be given by the Trust by mail to
each Holder of Securities to be redeemed not fewer than 30 nor more than 60
days before the Redemption Date, which shall be the date fixed for
repayment of the Debentures. A Redemption Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, to Holders. No defect in the Redemption Notice or in the mailing
of the Redemption Notice with respect to any Holder shall affect the
validity of the redemption proceedings with respect to any other Holder.
52
(ii) Each Redemption Notice shall be sent by the Property Trustee on
behalf of the Trust to:
(A) in respect of the Preferred Securities, the Clearing Agency
or its nominee (or any successor Clearing Agency or its nominee) if
the Global Preferred Securities have been issued or, the Holders
thereof if Definitive Preferred Securities have been issued, and
(B) in respect of the Common Securities, the Holder (or Holders)
thereof.
(iii) Once the Trust gives a Redemption Notice:
(A) with respect to Preferred Securities issued in book-entry
form, by 12:00 noon (New York City time) on the Redemption Date of
such Preferred Securities, provided that the Debenture Issuer has paid
the Property Trustee a sufficient amount of cash in connection with
the related repayment of the Debentures by 10:00 a.m. (New York City
time) on the maturity date, the Property Trustee shall deposit
irrevocably with the Clearing Agency or its nominee (or successor
Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to such Global Preferred Securities and
shall give the Clearing Agency irrevocable instructions and authority
to pay the Redemption Price to the relevant Clearing Agency
Participants, and
(B) with respect to Preferred Securities issued in definitive
form and Common Securities, by 12:00 noon (New York City time) on the
Redemption Date of such Securities, provided that the Debenture Issuer
has paid the Property Trustee a sufficient amount of cash in
connection with the related repayment of the Debentures by 10:00 a.m.
(New York City time) on the maturity date, the Property Trustee shall
deposit irrevocably with the Paying Agent funds sufficient to pay the
applicable Redemption Price with respect to such Definitive Preferred
Securities and Common Securities and shall give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to
the relevant Holders upon surrender of their Certificates evidencing
their Securities.
(iv) If a Redemption Notice shall have been given and funds deposited
as required, then, immediately prior to the close of business on the
Redemption Date, Distributions shall cease to accumulate on the Securities
called for redemption and all rights of Holders of Securities called for
redemption, except the right of such Holders to receive the Redemption
Price (but without interest on such Redemption Price), shall cease, and
such Securities shall cease to be outstanding.
(v) Payment of accumulated and unpaid Distributions on the Redemption
Date of the Securities shall be subject to the rights of Holders on the
close of business on a Regular Record Date in respect of a Distribution
Date occurring prior to or on such Redemption Date.
53
(vi) If any Redemption Date is not a Business Day, payment of the
Redemption Price payable on such Redemption Date shall be made on the next
day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such next Business Day falls in
the next 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 the date such payment was originally payable.
(vii) If payment of the Redemption Price in respect of any Securities
called for redemption is improperly withheld or refused and not paid either
by the Property Trustee or by the Sponsor pursuant to the Guarantee,
Distributions on such Securities shall continue to accumulate from the
redemption date originally established by the Trust to the date such
Redemption Price is actually paid, in which case the actual payment date
shall be the Redemption Date for purposes of calculating the Redemption
Price.
(viii) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and banking laws), the
Sponsor or any of its subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by tender, in the open market or
by private agreement.
SECTION 6.10 DISTRIBUTION OF DEBENTURES IN EXCHANGE FOR SECURITIES UPON THE
OCCURRENCE OF A SPECIAL EVENT.
(a) If at any time either a Tax Event or an Investment Company Act Event
occurs (each, a "Special Event") and certain conditions set forth in Section
6.10(b) are satisfied, the Administrative Trustees may dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, cause the Debentures held by the Property Trustee to be
distributed to the Holders in liquidation of such Holders' interests in the
Trust on a Pro Rata basis, upon not less than 30 nor more than 60 days notice,
within the 90 days following the occurrence of such Special Event (the "90 Day
Period"), and, simultaneous with such distribution, to cause a Like Amount of
the Securities to be exchanged by the Trust on a Pro Rata basis.
(b) The dissolution of the Trust and distribution of the Debentures
pursuant to Section 6.10(a) shall be permitted only upon satisfaction of the
following three conditions:
(i) the receipt by the Administrative Trustees of an Opinion of
Counsel, rendered by an independent law firm having a recognized national
tax practice, to the effect that the Holder shall not recognize any gain or
loss for United States federal income tax purposes as a result of the
dissolution of the Trust and the distribution of the Debentures (a "No
Recognition Opinion"); provided that if a Special Event occurs and the
Administrative Trustees are informed by an independent counsel that such
counsel cannot deliver a No Recognition Opinion to the Trust, and thus a
dissolution of the Trust and distribution of the Debentures shall not be
permitted, the Debenture Issuer shall have the right to cause a Remarketing
of the Preferred Securities as set forth in Section 6.6 within the 90 Day
Period;
54
(ii) neither the Trust nor the Debenture Issuer being able to
eliminate, which elimination shall be complete within the 90 Day Period,
such Special Event by taking some ministerial action (such as filing a
form, making an election or pursuing some other reasonable measure) that:
(A) has no material adverse effect on the Trust, the Debenture
Issuer or the Holders; or
(B) does not subject any of them to more than de minimis
regulatory requirements; and
(iii) the receipt by the Administrative Trustees of the prior written
consent of the Debenture Issuer.
(c) Notice of any distribution of Debentures in exchange for the Securities
(a "Debenture Distribution Notice"), which notice shall be irrevocable, shall be
given by the Trust by mail to each Holder of Securities not fewer than 30 nor
more than 60 days before the date of distribution of the Debentures. A Debenture
Distribution Notice shall be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to Holders. No defect in the
Debenture Distribution Notice or in the mailing of the Debenture Distribution
Notice with respect to any Holder shall affect the validity of the exchange
proceedings with respect to any other Holder.
Each Debenture Distribution Notice shall be sent by the Property Trustee on
behalf of the Trust to:
(i) in respect of the Preferred Securities, the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee) if the Global
Preferred Securities have been issued or, the Holders thereof if Definitive
Preferred Securities have been issued, and
(ii) in respect of the Common Securities, the Holder (or Holders)
thereof.
(d) On and from the date fixed by the Property Trustee for any distribution
of Debentures and liquidation of the Trust:
(i) the Securities no longer shall be deemed to be outstanding;
(ii) the Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee), as the Holder of the Preferred Securities, will
receive a registered global certificate or certificates representing the
Debentures to be delivered upon such distribution; and
(iii) any certificates representing Securities not held by the
Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) shall be deemed to represent Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of such
Securities and bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on such Securities, until such
55
certificates are presented for cancellation, at which time the Debenture
Issuer shall issue, and the Debenture Trustee shall authenticate, a
certificate representing such Debentures.
(e) In the event of a dissolution of the Trust and a distribution of the
Debentures, pursuant to the Indenture, the Debenture Issuer shall have the same
rights, and shall be subject to the same terms and conditions, to cause a
Remarketing of the Debentures as the Sponsor has and is subject to under Section
6.6 to cause a Remarketing of the Preferred Securities.
SECTION 6.11 VOTING RIGHTS OF THE PREFERRED SECURITIES.
(a) Except as provided under this Section 6.11 and 11.1 and as otherwise
required by the Delaware Business Trust Act, this Trust Agreement and other
applicable law, the Holders of the Preferred Securities shall have no voting
rights.
(b) Subject to the requirement of the Property Trustee obtaining a tax
opinion in certain circumstances set forth in Section 6.11(d), the Holders of a
Majority in Liquidation Amount of the Preferred Securities, voting separately as
a class, shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or to direct
the exercise of any trust or power conferred upon the Property Trustee under
this Trust Agreement, including the right to direct the Property Trustee, as
Holder of the Debentures, to:
(i) exercise the remedies available to it under the Indenture;
(ii) consent to any amendment or modification of the Indenture or the
Debentures where such consent is required; or
(iii) waive any past default and its consequences that are waivable
under Section 2.11 of the Indenture;
provided that if an Indenture Event of Default has occurred and is continuing,
the Holders of at least 25% of the aggregate stated liquidation amount of the
Preferred Securities may direct the Property Trustee to declare the principal of
and premium, if any, and interest on the Debentures due and payable; and
provided further that where a consent or action under the Indenture would
require the consent or act of the Holders of a Super Majority of the aggregate
principal amount of Debentures affected thereby, the Property Trustee may give
such consent or take such action only at the written direction of the Holders of
at least the proportion in aggregate liquidation amount of the Preferred
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
(c) If the Property Trustee fails to enforce its rights under the
Debentures after a Holder of Preferred Securities has made a written request,
such Holder of Preferred Securities may institute, to the fullest extent
permitted by law, a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the Indenture without first
instituting any legal proceeding against the Property Trustee or any other
Person. In addition, if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to make
any interest, principal or other required payments when
56
due under the Indenture, then a Holder of Preferred Securities may institute a
Direct Action against the Debenture Issuer on or after the respective due date
specified in the Debentures.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Debenture Issuer with respect to the Debentures. Such notice shall state that
such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Property Trustee shall be under no obligation to
take any of the actions described in clauses (i) and (ii) of Section 6.10(b),
unless the Property Trustee has obtained an Opinion of Counsel, rendered by an
independent law firm experienced in such matters, to the effect that the Trust
will not fail to be classified as a grantor trust for United States federal
income tax purposes as a result of such action, and that each Holder of
Preferred Securities shall be treated as owning an undivided beneficial interest
in the Debentures.
(e) If the consent of the Property Trustee, as the Holder of the
Debentures, is required under the Indenture with respect to any amendment or
modification of the Indenture, the Property Trustee shall request the direction
of the Holders with respect to such amendment or modification and shall vote
with respect to such amendment or modification as directed by a Majority in
Liquidation Amount of the Securities voting together as a single class; provided
that where a consent under the Indenture would require the consent of the
Holders of a Super Majority of the aggregate principal amount of the Debentures,
the Property Trustee may give such consent only at the direction of the Holders
of at least the proportion in aggregate liquidation amount of the Securities
that the relevant Super Majority represents of the aggregate principal amount of
the Debentures outstanding. The Property Trustee shall not take any such action
in accordance with the directions of the Holders of the Securities unless the
Property Trustee has obtained an Opinion of Counsel, rendered by an independent
law firm experienced in such matters, to the effect that the Trust will not fail
to be classified as a grantor trust for United States federal income tax
purposes as a result of such action, and that each Holder of Securities will be
treated as owning an undivided beneficial interest in the Debentures.
(f) A waiver of an Indenture Event of Default with respect to the
Debentures shall constitute a waiver of the corresponding Trust Enforcement
Event.
(g) Any required approval or direction of the Holders of the Preferred
Securities may be given at a separate meeting of the Holders of the Preferred
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities or pursuant to written consent. The Administrative Trustees shall
cause a notice of any meeting at which Holders of the Preferred Securities are
entitled to vote to be mailed to each Holder of record of Preferred Securities.
Each such notice shall include a statement setting forth:
(i) the date of such meeting;
(ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote; and
(iii) instructions for the delivery of proxies.
57
(h) No vote or consent of the Holders of the Preferred Securities shall be
required for the Trust to redeem and cancel the Preferred Securities or
distribute the Debentures in accordance with this Trust Agreement and the terms
of the Securities.
(i) Notwithstanding that the Holders of the Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned at such time by the Sponsor, the
Trustees or any Affiliate of the Sponsor or any Trustee shall not be entitled to
vote or consent and shall be treated, for purposes of such vote or consent, as
if such Preferred Securities were not outstanding.
(j) Except as provided under Section 6.11(k), the Holders of the Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Holders of the Common Securities.
(k) If an Indenture Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed and replaced by a
Majority in Liquidation Amount of the Preferred Securities.
SECTION 6.12 VOTING RIGHTS OF THE COMMON SECURITIES.
(a) Except as provided in Section 5.1(b), this Section 6.12 and Section
11.1 and as otherwise required by the Delaware Business Trust Act, the Trust
Indenture Act or other applicable law, the Holders of the Common Securities
shall have no voting rights.
(b) Subject to Section 6.11(k), the Holders of the Common Securities shall
be entitled to vote to appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees in accordance with Article V.
(c) Subject to Section 2.6 and only after all Trust Enforcement Events with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated and subject to the requirement of the Property Trustee obtaining an
Opinion of Counsel, rendered by an independent law firm experienced in such
matters, in certain circumstances set forth in this Section 6.12(c), the Holders
of the Common Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or to direct the exercise of any trust or power conferred upon the
Property Trustee under this Trust Agreement, including the right to direct the
Property Trustee, as the holder of the Debentures, to:
(i) exercise the remedies available to it under the Indenture;
(ii) consent to any amendment or modification of the Indenture or the
Debentures where such consent is required; or
(iii) waive any past default and its consequences that are waivable
under Section 2.11 of the Indenture;
provided that where a consent or action under the Indenture would require the
consent or act of the Holders of a Super Majority of the aggregate principal
amount of Debentures affected
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thereby, only the Holders of at least the proportion in aggregate liquidation
amount of the Common Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures may direct the Property Trustee
to give such consent or take such action. Except with respect to directing the
time, method and place of conducting a proceeding for a remedy, the Property
Trustee shall be under no obligation to take any of the actions described in
clauses (i) and (ii) of this Section 6.11(c) unless the Property Trustee has
obtained an Opinion of Counsel, rendered by an independent law firm experienced
in such matters, to the effect that the Trust will not fail to be classified as
a grantor trust for United States federal income tax purposes as a result of
such action, and each Holder will be treated as owning an undivided beneficial
interest in the Debentures.
(d) If the Property Trustee fails to enforce its rights under the
Debentures after the Holders of the Common Securities have made a written
request pursuant to Section 6.11(c), the Holders of the Common Securities may
institute, to the fullest extent permitted by law, a legal proceeding directly
against the Debenture Issuer to enforce the Property Trustee's rights under the
Debentures without first instituting any legal proceeding against the Property
Trustee or any other Person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures shall constitute a waiver of the corresponding Trust Enforcement
Event.
(f) Any required approval or direction of the Holders of the Common
Securities may be given at a separate meeting of the Holders of the Common
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities or pursuant to written consent. The Administrative Trustees shall
cause a notice of any meeting at which the Holders of the Common Securities are
entitled to vote to be mailed to the Holders of the Common Securities. Such
notice shall include a statement setting forth:
(i) the date of such meeting;
(ii) a description of any resolution proposed for adoption at such
meeting on which the Holders of the Common Securities are entitled to vote;
and
(iii) instructions for the delivery of proxies.
(g) No vote or consent of the Holders of the Common Securities shall be
required for the Trust to redeem and cancel the Common Securities or to
distribute the Debentures in accordance with this Trust Agreement and the terms
of the Securities.
SECTION 6.13 RANKING.
The Preferred Securities rank pari passu with the Common Securities and
payment thereon shall be made on a Pro Rata basis with the Common Securities,
except that, if a Trust Enforcement Event occurs and is continuing, no payments
in respect of Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made until the Holders
of the Preferred Securities shall be paid in full the Distributions, Redemption
Price, Liquidation Distribution and other payments to which they are entitled at
such time.
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SECTION 6.14 REGISTRAR, PAYING AGENT AND TRANSFER AGENT.
The Trust shall maintain in the Borough of Manhattan, The City of New York
or such other place as the Sponsor may designate:
(i) an office or agency where Preferred Securities may be presented
for registration of transfer ("Registrar"),
(ii) an office or agency where Definitive Preferred Securities may be
presented for payment, if any Preferred Securities are not represented by
one or more Global Preferred Securities ("Paying Agent"); and
(iii) an office or agency where Securities may be presented for
transfer and exchange ("Transfer Agent").
The Registrar shall keep a register of the Preferred Securities and of
their transfer. The term "Registrar" includes any additional registrar, "Paying
Agent" includes any additional paying agent and the term "Transfer Agent"
includes any additional transfer agent. The Administrative Trustees on behalf of
the Trust may appoint the Registrar, the Paying Agent and the Transfer Agent. If
the Administrative Trustees fail to appoint or maintain another entity as
Registrar, Paying Agent or Transfer Agent, the Property Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent, Registrar, or
Transfer Agent. The Administrative Trustees on behalf of the Trust may change
any Registrar, Paying Agent or Transfer Agent without prior notice to any
Holder. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees. The Administrative Trustees
on behalf of the Trust shall notify the Property Trustee and the Holders of any
change in the location of the office or agency of any Agent.
The Trust shall act as Registrar and Transfer Agent, and initially appoints
The Bank of New York as Paying Agent, for the Common Securities.
The Trust initially appoints The Bank of New York as Registrar, Paying
Agent and Transfer Agent for the Preferred Securities.
SECTION 6.15 PAYING AGENT TO HOLD MONEY IN TRUST.
The Trust shall require each Paying Agent other than the Property Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Property Trustee all money held by the Paying Agent for the
payment of Distributions, Redemption Price or Liquidation Amounts, and will
notify the Property Trustee if there are insufficient funds for such purpose.
While any such insufficiency continues, the Property Trustee may require a
Paying Agent to pay all money held by it to the Property Trustee. The Trust at
any time may require a Paying Agent to pay all money held by it to the Property
Trustee and to account for any money disbursed by it. Upon payment over to the
Property Trustee, the Paying Agent (if other than the Trust or an Affiliate of
the Trust) shall have no further liability for the money. If the Trust or the
Sponsor or any Affiliate of the Trust or the Sponsor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent.
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SECTION 6.16 REPLACEMENT SECURITIES.
If a Holder claims that a Security owned by it has been lost, destroyed or
wrongfully taken or if such Security is mutilated and is surrendered to the
Trust or in the case of the Preferred Securities to the Property Trustee, the
Trust shall issue and the Property Trustee shall, upon written order of the
Trust, authenticate a replacement Security if the Property Trustee's and the
Trust's requirements, as the case may be, are met. An indemnity bond must be
provided by the Holder which, in the judgment of the Property Trustee, is
sufficient to protect the Trustees, the Sponsor, the Trust or any Authenticating
Agent from any loss which any of them may suffer if a Security is replaced. The
Trust may charge such Holder for its expenses in replacing a Security.
SECTION 6.17 OUTSTANDING PREFERRED SECURITIES.
The Preferred Securities outstanding at any time are all the Preferred
Securities authenticated by the Property Trustee and, in the case of the Global
Preferred Securities, specified in the "Schedule of Increases or Decreases in
Global Preferred Security" attached thereto (or on the books and records of the
Property Trustee and the Clearing Agency or its nominee), except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
A Preferred Security does not cease to be outstanding because the Sponsor,
one of the Trustees or any Affiliate of the Sponsor or any of the Trustees owns
the Security.
SECTION 6.18 PREFERRED SECURITIES IN TREASURY.
In determining whether the Holders of the required amount of Securities
have concurred in any direction, waiver or consent, Preferred Securities owned
by the Sponsor, the Trustees or any Affiliate of the Sponsor or any Trustees, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be fully
protected in relying on any such direction, waiver or consent, only Securities
which a Responsible Officer of the Property Trustee actually knows are so owned
shall be so disregarded.
SECTION 6.19 DEEMED SECURITY HOLDERS.
The Trustees may treat the Person in whose name any Security shall be
registered on the books and records of the Trust as the sole owner of such
Security for purposes of receiving Distributions and for all other purposes
whatsoever. Accordingly, the Trustees shall not be bound to recognize any
equitable or other claim to or interest in such Security on the part of any
Person, whether or not the Trust shall have actual or other notice thereof.
SECTION 6.20 CANCELLATION.
The Trust at any time may deliver Preferred Securities to the Property Trustee
for cancellation. The Registrar, Paying Agent and Transfer Agent shall forward
to the Property Trustee any Preferred Securities surrendered to them for
registration of transfer, redemption, exchange or payment. The Property Trustee
shall promptly cancel all Preferred Securities
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surrendered for registration of transfer, redemption, exchange, payment,
replacement or cancellation and shall dispose of cancelled Preferred Securities
as the Trust directs in writing, provided that the Property Trustee shall not be
obligated to destroy Preferred Securities. The Trust may not issue new Preferred
Securities to replace Preferred Securities that it has paid or that have been
delivered to the Property Trustee for cancellation or that any Holder has
exchanged.
SECTION 6.21 CUSIP NUMBERS.
The Trust in issuing the Preferred Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Property Trustee shall use "CUSIP"
numbers in Redemption Notices, Distribution Notices and notices of Remarketing
or as a convenience to Holders of Preferred Securities; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Preferred Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Preferred Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Sponsor will promptly notify the Property Trustee of any change in the CUSIP
numbers.
SECTION 6.22 GLOBAL PREFERRED SECURITIES; LEGENDS
(a) Preferred Securities shall be issued initially in the form of one or
more permanent global notes in registered form without interest coupons, in
substantially the form set forth in Exhibit A (a "Global Preferred Security"),
deposited with the Paying Agent, as custodian for the Clearing Agency, and
registered in the name of the Clearing Agency or a nominee of the Clearing
Agency, duly executed by each Issuer and authenticated by the Property Trustee
as hereinafter provided.
(b) Every Global Preferred Security authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE UNIT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF
THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
(c) An Administrative Trustee shall execute, and the Property Trustee shall
authenticate and deliver, one or more Global Preferred Securities that:
(i) shall be registered in the name of the Clearing Agency or the
nominee of such Clearing Agency; and
(ii) shall be delivered by the Property Trustee to such Clearing
Agency or pursuant to such Clearing Agency's instructions.
The Global Preferred Securities shall represent such of the outstanding
Preferred Securities as shall be specified in the "Schedule of Increases or
Decreases in Global Preferred Security" attached thereto (or on the books and
records of the Property Trustee and the Clearing Agency or its nominee). The
Global Preferred Securities shall initially represent no Preferred Securities
and shall not, at any time, represent more than 3,500,000 (or 4,000,000 if the
Managing Underwriter's over-allotment option with respect to the Units is
exercised in full) Preferred Securities with a maximum liquidation value of
$175,000,000 (or $200,000,000 if the Managing Underwriter's over-allotment
option with respect to the Units is exercised in full).
In addition, Global Preferred Securities shall bear a legend substantially
to the following effect:
"This Preferred Security is a Global Preferred Security within the meaning
of the Trust Agreement hereinafter referred to and is registered in the
name of The Depository Trust Company, a New York corporation (the "Clearing
Agency"), or a nominee of the Clearing Agency. This Preferred Security is
exchangeable for Preferred Securities registered in the name of a person
other than the Clearing Agency or its nominee only in the limited
circumstances described in the Trust Agreement, and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a
whole by the Clearing Agency to a nominee of the Clearing Agency or by a
nominee of the Clearing Agency to the Clearing Agency or another nominee of
the Clearing Agency) may be registered except in limited circumstances.
Unless this certificate is presented by an authorized representative of the
Clearing Agency to IndyMac Capital Trust I or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in
the name
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of Cede & Co. or such other name as requested by an authorized
representative of the Clearing Agency (and any payment hereon is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of the Clearing Agency), and except as otherwise provided in
the Trust Agreement, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein."
(d) Preferred Securities not represented by a Global Preferred Security
issued in exchange for all or a part of a Global Preferred Security pursuant to
this Section 6.22 shall be registered in such names and in such authorized
denominations as the Clearing Agency, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Property Trustee. Upon
execution and authentication, the Property Trustee shall deliver any Preferred
Securities not represented by a Global Preferred Security to the Persons in
whose names such Definitive Preferred Securities are so registered.
(e) At such time as all interests in Global Preferred Securities have been
redeemed, repurchased or canceled, such Global Preferred Securities shall be
canceled, upon receipt thereof, by the Property Trustee in accordance with
standing procedures of the Clearing Agency. At any time prior to such
cancellation, if any interest in a Global Preferred Security is exchanged for
Preferred Securities not represented by a Global Preferred Security, redeemed,
canceled or transferred to a transferee who receives Preferred Securities not
represented by a Global Preferred Security, or if any Preferred Security not
represented by a Global Preferred Security is exchanged or transferred for part
of a Global Preferred Security, then, in accordance with the standing procedures
of the Clearing Agency, the aggregate stated liquidation amount of such Global
Preferred Security shall be reduced or increased, as the case may be, and an
endorsement shall be made on such Global Preferred Security by the Property
Trustee to reflect such reduction or increase in the "Schedule of Increases or
Decreases in Global Preferred Security" attached thereto.
(f) The Trust and the Property Trustee, as the authorized representative of
the Holders of the Preferred Securities, may deal with the Clearing Agency for
all purposes of this Trust Agreement, including the making of payments due on
the Preferred Securities and exercising the rights of Holders of the Preferred
Securities hereunder. The rights of any Preferred Security Beneficial Owners
shall be limited to those established by law and agreements between such owners
and Clearing Agency Participants; provided that no such agreement shall give to
any Person any rights against the Trust or the Property Trustee without the
written consent of the parties so affected. Multiple requests and directions
from and votes of the Clearing Agency as the Holder of the Preferred Securities
represented by Global Preferred Securities with respect to any particular matter
shall not be deemed inconsistent to the extent they do not represent an amount
of Preferred Securities in excess of those held in the name of the Clearing
Agency or its nominee.
(g) If at any time the Clearing Agency notifies the Trust that it is
unwilling or unable to continue as Clearing Agency for the Preferred Securities
or if at any time the Clearing Agency no longer is eligible to serve as Clearing
Agency, the Administrative Trustees shall appoint a successor Clearing Agency
with respect to the Preferred Securities. If a successor Clearing
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Agency is not appointed by the Trust within 90 days after the Trust receives
such notice or becomes aware of such ineligibility, the Trust's election that
the Preferred Securities be represented by one or more Global Preferred
Securities shall no longer be effective, and an Administrative Trustee shall
execute, and the Property Trustee shall authenticate and deliver, Definitive
Preferred Securities, in any authorized denominations, in an aggregate stated
liquidation amount equal to the aggregate stated liquidation amount of the
Global Preferred Securities representing the Preferred Securities, in exchange
for such Global Preferred Securities. An Administrative Trustee also shall
execute, and the Property Trustee also shall authenticate and deliver,
Definitive Preferred Securities, in any authorized denominations, in an
aggregate stated liquidation amount equal to the aggregate stated liquidation
amount of the Global Preferred Securities representing the Preferred Securities,
in exchange for such Global Preferred Securities, if (1) the Sponsor in its sole
discretion elects to cause the issuance of the Preferred Securities in
definitive form or (2) there shall have occurred and be continuing any event
which after notice or lapse of time or both would be a Trust Enforcement Event.
(h) The Administrative Trustees at any time and in their sole discretion
may determine that the Preferred Securities issued in the form of one or more
Global Preferred Securities shall no longer be represented by Global Preferred
Securities. In such event an Administrative Trustee on behalf of the Trust shall
execute, and the Property Trustee shall authenticate and deliver, Definitive
Preferred Securities, in any authorized denominations, in an aggregate stated
liquidation amount equal to the aggregate stated liquidation amount of the
Global Preferred Securities representing the Preferred Securities, in exchange
for such Global Preferred Securities.
(i) Notwithstanding any other provisions of this Trust Agreement (other
than the provisions set forth in Section 7.1), Global Preferred Securities may
not be transferred as a whole except by the Clearing Agency to a nominee of the
Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or
another nominee of the Clearing Agency or by the Clearing Agency or any such
nominee to a successor Clearing Agency or a nominee of such successor Clearing
Agency.
(j) Interests of Preferred Security Beneficial Owners may be transferred or
exchanged for Preferred Securities not represented by a Global Preferred
Security, and Preferred Securities not represented by a Global Preferred
Security may be transferred or exchanged for a Global Preferred Security or
Securities, in accordance with rules of the Clearing Agency and the provisions
of Section 7.1.
The Registrar shall retain for at least two years copies of all letters,
notices and other written communications received pursuant to this Section 7.1.
The Issuers shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
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ARTICLE VII
TRANSFER OF SECURITIES
SECTION 7.1 TRANSFER OF SECURITIES.
(a) The Preferred Securities may be transferred, in whole or in part, only
in accordance with the terms and conditions set forth in this Trust Agreement
and in the terms of the Preferred Securities. To the fullest extent permitted by
law, any transfer or purported transfer of any Preferred Security not made in
accordance with this Trust Agreement shall be null and void.
(b) Subject to this Section 7.1 and Section 6.22, the Preferred Securities
shall be freely transferable.
(c) The Common Securities shall not be transferable except as provided in
the Indenture.
(d) The Trust shall cause to be kept at the Corporate Trust Office the
books and records in which, subject to such reasonable regulations as it may
prescribe, the Trust shall provide for the registration of Preferred Securities
and of transfers of Preferred Securities.
(e) Upon surrender for registration of transfer of any Preferred Securities
at an office or agency of the Trust designated for such purpose, an
Administrative Trustee shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of any authorized
denominations and of a like aggregate principal amount.
(f) At the option of the Holder, Preferred Securities may be exchanged for
other Preferred Securities of any authorized denominations and of a like
aggregate stated liquidation amount, upon surrender of the Preferred Securities
to be exchanged at such office or agency. Whenever any Preferred Securities are
so surrendered for exchange, an Administrative Trustee shall execute, and the
Property Trustee shall authenticate and deliver, the Preferred Securities that
the Holder making the exchange is entitled to receive.
(g) If so required by the Property Trustee, every Preferred Security
presented or surrendered for registration of transfer or for exchange shall be
duly endorsed, or accompanied by a duly executed written instrument of transfer
in form satisfactory to the Property Trustee and the Registrar, by the Holder
thereof or his attorney duly authorized in writing.
(h) No service charge shall be made for any registration of transfer or
exchange of Preferred Securities, but the Trust may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Preferred
Securities.
(i) If the Preferred Securities are to be redeemed in part, neither the
Administrative Trustees nor the Trust shall be required to register the transfer
of or exchange any Preferred Securities:
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(i) during a period beginning on the opening of business 15 days
before the day of the mailing of a Redemption Notice or any notice of
selection of Securities for redemption; or
(ii) so selected for redemption, except the unredeemed portion of any
such Preferred Securities being redeemed in part.
SECTION 7.2 SEPARATION AND REJOINING OF UNITS.
At any time after issuance, the Preferred Security and Warrant components
of any Unit may be separated by the holder and thereafter transferred
separately. In the event of any separation of the components of a Unit:
(a) if such Unit is represented by a definitive certificate, the
holder shall present such definitive certificate to the Unit Agent for
cancellation and the Unit Agent shall so notify the Unit registrar and
shall return the Preferred Security component of such Unit to the Property
Trustee with an instruction to countersign and deliver to, or upon the
instruction of, such holder a separated Preferred Security bearing the
separate "CUSIP" number assigned to the Preferred Security; and
(b) if such Unit is represented by a global certificate, the Unit
Agent shall make the necessary endorsement to the "Schedule of Exchanges of
Interests of Global Preferred Security" attached to the global unit
certificate or otherwise comply with its procedures to reduce the amount of
Units represented thereby and shall instruct the Property Trustee to effect
a corresponding increase in the Preferred Securities represented by the
Global Preferred Securities bearing a separate "CUSIP" number.
Once separated, a Preferred Security and Warrant may be rejoined to form a
Unit. In the event a holder of a Preferred Security and a Warrant desires to
rejoin a Unit:
(i) if the constituent components are represented by definitive
certificates, the holder shall present (A) the Preferred Security to the
Property Trustee and (B) the Warrant to the Warrant Agent, in each case for
cancellation and the Property Trustee and the Warrant Agent shall so notify
the Unit Agent, who shall in turn so notify the Unit registrar with an
instruction for the Unit registrar to countersign and deliver to, or upon
the instruction of, such holder a Unit certificate bearing the separate
"CUSIP" number assigned to the Units; and
(ii) if the constituent components are represented by global
certificates, each of the Property Trustee and the Warrant Agent shall make
the necessary endorsement to their respective global certificates or
otherwise comply with their procedures to reduce the amount of Preferred
Securities and Warrants, respectively, represented thereby and shall
instruct the Unit Agent to effect a corresponding increase in the Units
represented by the global unit certificate bearing a separate "CUSIP"
number. The Property Trustee shall make such other necessary endorsements
to the Global Preferred Securities consistent with the terms of this
agreement to reflect the appropriate number of Units and Preferred
Securities, as appropriate, represented thereby.
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SECTION 7.3 BOOK-ENTRY INTERESTS.
Unless Definitive Preferred Securities have been issued to the Preferred
Security Beneficial Owners pursuant to Sections 6.21(e) and 6.21(f):
(a) the provisions of this Section 7.3 shall be in full force and
effect;
(b) to the extent that the provisions of this Section 7.3 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 7.3 shall control;
(c) the Trust, the Sponsor and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Trust Agreement
(including the payment of Distributions on the Global Preferred Securities
and receiving approvals, votes or consents hereunder) as the Holder of the
Preferred Securities and the absolute owner of the Global Preferred
Securities for all purposes whatsoever and shall have no obligation to the
Preferred Security Beneficial Owners; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants. The Clearing Agency shall make book-entry transfers among the
Clearing Agency Participants and shall receive and transmit payments of
Distributions on the Global Preferred Securities to such Clearing Agency
Participants; provided that solely for the purposes of determining whether
the Holders of the requisite liquidation amount of Preferred Securities
have voted on any matter provided for in this Trust Agreement, so long as
Definitive Preferred Securities have not been issued and the Preferred
Securities remain in the form of one or more Global Preferred Securities,
the Trustees may rely conclusively on, and shall be protected in relying
on, any written instrument (including a proxy) delivered to the Trustees by
the Clearing Agency setting forth the votes of the Preferred Security
Beneficial Owners or assigning the right to vote on any matter to any other
Persons either in whole or in part.
SECTION 7.4 NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Preferred Security Holders
is required under this Trust Agreement, the Trustees shall give all such notices
and communications specified herein to be given to the Holders of Global
Preferred Securities to the Clearing Agency, and shall have no notice
obligations to the Preferred Security Beneficial Owners.
SECTION 7.5 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Preferred Securities, the Administrative Trustees
may, in their sole discretion, appoint a successor Clearing Agency with respect
to such Preferred Securities.
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ARTICLE VIII
DISSOLUTION AND TERMINATION OF THE TRUST
SECTION 8.1 DISSOLUTION AND TERMINATION OF THE TRUST.
(a) The Trust shall automatically dissolve upon the earliest to occur of:
(i) the bankruptcy of the Sponsor;
(ii) the filing of a certificate of dissolution or its equivalent with
respect to the Sponsor; or the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
(iii) the entry of a decree of judicial dissolution of the Sponsor or
the Trust by a court of competent jurisdiction;
(iv) the time when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been
paid to the Holders in accordance with the terms of the Securities;
(v) the written notice from the Sponsor directing the Property Trustee
to distribute the Debentures to the Holders in exchange for all of the
Securities; provided that the Sponsor has provided to the Property Trustee
an Opinion of a Counsel experienced in such matters to the effect that the
Holders will not recognize any gain or loss for United States federal
income tax purposes as a result of the distribution of Debentures and the
dissolution of the Trust;
(vi) the time when all of the Administrative Trustees and the Sponsor
have consented to the dissolution of the Trust, provided that such action
is taken before the issuance of any Securities; and
(vii) the expiration of the term of the Trust provided in Section
3.13.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), after completion of the winding up of the affairs of the
Trust, the Administrative Trustees shall terminate the Trust by executing and
filing a certificate of cancellation of the certificate of trust of the Trust
with the Secretary of State of the State of Delaware.
(c) The provisions of Section 4.2 and Article IX shall survive the
termination of the Trust.
SECTION 8.2 LIQUIDATION DISTRIBUTION UPON DISSOLUTION OR TERMINATION OF THE
TRUST.
(a) In the event of any voluntary or involuntary dissolution or termination
of the Trust pursuant to Section 8.1(a)(i), 8.1(a)(ii), 8.1(a)(iii) or 8.1(a)(v)
(each a "Liquidation"), the Trust shall be liquidated by the Administrative
Trustees as expeditiously as the Administrative Trustees determine to be
possible by distributing to the Holders, after satisfaction of liabilities to
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creditors of the Trust, if any, as provided by applicable law, Debentures in an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Distribution rate of, and accrued and
unpaid interest equal to accumulated and unpaid Distributions on, such
Securities in exchange for such Securities.
(b) If, notwithstanding the other provisions of this Section 8.2,
distribution of the Debentures in the manner set forth in Section 8.2(a)(i) is
determined by the Property Trustee not to be practical, the assets of the Trust
shall be liquidated, and the Trust shall be wound-up by the Administrative
Trustees in such manner as the Administrative Trustees determine. In such event,
the Holders shall be entitled to receive out of the assets of the Trust
available for distribution to the Holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to the
Accreted Value of the Securities plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such Liquidation, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets available to pay
the aggregate Liquidation Distribution in full, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis,
provided that if an Indenture Event of Default has occurred and is continuing,
then the Preferred Securities shall have a preference over the Common Securities
with regard to the Liquidation Distribution.
(c) Notice of any distribution of Debentures in exchange for the Securities
(an "Exchange Notice"), which notice shall be irrevocable, shall be given by the
Administrative Trustees on behalf of the Trust by mail to each Holder at least
30 but no more than 60 days before the date fixed for such distribution. For
purposes of the calculation of the date of distribution and the dates on which
notices are given pursuant to this Section 8.2(c), an Exchange Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to the Holders. Each Exchange Notice shall be addressed to the
Holders at the address of each such Holder appearing on the books and records of
the Trust. No defect in the Exchange Notice or in the mailing of either thereof
with respect to any Holder shall affect the validity of the distribution
proceedings with respect to any other Holder.
(d) On and from the date fixed for any distribution of Debentures upon
dissolution of the Trust:
(i) the Securities no longer shall be deemed to be outstanding;
(ii) the Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee), as the Holder of the Preferred Securities, will
receive a registered global certificate or certificates representing the
Debentures to be delivered upon such distribution; and
(iii) any certificates representing Securities not held by the
Clearing Agency or its nominee (or any successor Clearing Agency or its
nominee) shall be deemed to represent Debentures having an aggregate
principal amount equal to the aggregate liquidation amount of such
Securities and bearing accrued and unpaid interest in an amount equal to
the accumulated and unpaid Distributions on such Securities, until such
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certificates are presented for cancellation, at which time the Debenture
Issuer shall issue, and the Debenture Trustee shall authenticate, a
certificate representing such Debentures.
ARTICLE IX
LIMITATION OF LIABILITY OF THE HOLDERS, THE TRUSTEES OR
OTHERS
SECTION 9.1 LIABILITY.
(a) Except as expressly set forth in this Trust Agreement, the Guarantee
and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders which shall be made
solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder any deficit upon
dissolution of the Trust or otherwise.
(b) The Sponsor, in its capacity as Debenture Issuer, shall be liable for
all of the debts and obligations of the Trust (other than in respect of the
Securities) to the extent such debts and obligations are not satisfied out of
the Trust's assets.
(c) Pursuant to Section 3803(a) of the Delaware Business Trust Act, the
Holders shall be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION 9.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Trust Agreement or by law, except
that an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or, in the
case of the Property Trustee, negligence) or willful misconduct with respect to
such acts or omissions.
(b) Each Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters such
Indemnified Person reasonably believes to be within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
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SECTION 9.3 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:
(i) whenever a conflict of interest exists or arises between a Covered
Person and an Indemnified Person; or
(ii) whenever this Trust Agreement or any other agreement contemplated
herein or therein 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 Holder,
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 term 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.
(c) 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 shall not be
subject to any other or different standard imposed by this Trust Agreement
or by applicable law.
SECTION 9.4 INDEMNIFICATION.
(a) (i) Pursuant to the Indenture, the Debenture Issuer shall indemnify, to
the fullest extent permitted by law, any Debenture Issuer Indemnified Person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Debenture Issuer Indemnified
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Person against expenses (including attorneys' fees and expenses), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Trust, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Debenture Issuer Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the fullest extent
permitted by law, any Debenture Issuer Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Debenture
Issuer Indemnified Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Debenture
Issuer Indemnified Person shall have been adjudged to be liable to the
Trust, unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such Person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery or
such other court shall deem proper.
(iii) To the extent that a Debenture Issuer Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 9.4(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to the fullest extent
permitted by law, against expenses (including attorneys' fees and expenses)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this Section
9.4(a) (unless ordered by a court) shall be made by the Debenture Issuer
only as authorized in the specific case upon a determination that
indemnification of the Debenture Issuer Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made:
(A) by a majority vote of a Quorum of the Administrative Trustees
who were not parties to such action, suit or proceeding;
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(B) if such a Quorum is not obtainable, or, even if obtainable,
if a Quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion; or
(C) by the Holders of the Common Securities.
(v) Expenses (including attorneys' fees and expenses) incurred by a
Debenture Issuer Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the
Debenture Issuer in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
Debenture Issuer Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 9.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made:
(A) by a majority vote of a Quorum of disinterested
Administrative Trustees;
(B) if such a Quorum is not obtainable, or, even if obtainable,
if a Quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion; or
(C) the Holder of the Common Securities,
that, based upon the facts known to the Administrative Trustees, independent
legal counsel or Holders of the Common Securities at the time such determination
is made, such Debenture Issuer Indemnified Person acted in bad faith or in a
manner that such person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that such
Debenture Issuer Indemnified Person believed or had reasonable cause to believe
his conduct was unlawful.
In no event shall any advance be made in instances where the Administrative
Trustees, independent legal counsel or Holders of the Common Securities
reasonably determine that such person deliberately breached his duty to the
Trust or the Holders.
(vi) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4(a) shall not
be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the Debenture
Issuer or Holders of the Preferred Securities or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section
9.4(a) shall be deemed to be provided by a contract between the Debenture
Issuer and each Debenture Issuer Indemnified Person who serves in such
capacity at any time while this Section 9.4(a) is in effect. Any repeal or
modification of this Section 9.4(a) shall not affect any rights or
obligations then existing.
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(vii) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Debenture Issuer
Indemnified Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 9.4(a).
(viii) For purposes of this Section 9.4(a), references to "the Trust"
shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee,
officer, employee or agent of another entity, shall stand in the same
position under the provisions of this Section 9.4(a) with respect to the
resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 9.4(a) shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
Debenture Issuer Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(b) The Debenture Issuer agrees to indemnify:
(i) the Property Trustee;
(ii) the Delaware Trustee;
(iii) any Agent;
(iv) any Affiliate of the Property Trustee, the Delaware Trustee or
any Agent; and
(v) any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the Property
Trustee and the Delaware Trustee (each of the Persons in (i) through (iv)
being referred to as a "Fiduciary Indemnified Person")
for, and to hold each Fiduciary Indemnified Person harmless against, any and all
loss, liability, damage, claim or expense including taxes (other than taxes
based on the income of such Fiduciary Indemnified Person) incurred without gross
negligence (or, in the case of the Property Trustee, negligence) or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in this
Section 9.4(b) shall survive the satisfaction and discharge of this Trust
Agreement.
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SECTION 9.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Delaware Trustee, the Property
Trustee and any Agent (subject to Section 5.3(c)) may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders shall have no rights by virtue of this
Trust Agreement in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, the
Property Trustee or Agent shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of
a character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person, the Sponsor, the Delaware Trustee, the Property
Trustee and any Agent shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any
such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee, the Property Trustee and any Agent may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent
for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE X
ACCOUNTING
SECTION 10.1 FISCAL YEAR.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
SECTION 10.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Administrative
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year of the Trust by
a firm of independent certified public accountants selected by the
Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared and delivered to
each Holder, within 90 days after the end of each Fiscal Year of the Trust,
annual financial statements of the Trust, including a balance sheet of the Trust
as of the end of such Fiscal Year, and the related statements of income or loss.
(c) The Administrative Trustees shall cause to be duly prepared and
delivered to each Holder, an annual United States federal income tax information
statement, required by the Code, containing such information with regard to the
Securities held by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any such
statement at a later date, the Administrative Trustees shall endeavor to deliver
all such information statements within 30 days after the end of each Fiscal Year
of the Trust.
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(d) The Administrative Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority an annual United States federal income tax
return, on Form 1041 or such other form required by United States federal income
tax law, and any other annual income tax returns required to be filed on behalf
of the Trust with any state or local taxing authority.
SECTION 10.3 BANKING.
The Trust may maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Administrative Trustees; provided, however, that the Property Trustee (or
the Paying Agent) shall designate the signatories for the Property Account.
SECTION 10.4 WITHHOLDING.
The Trust and the Administrative Trustees shall comply with all withholding
requirements under United States federal, state and local law. The
Administrative Trustees shall request, and the Holders shall provide to the
Trust, such forms or certificates as are necessary to establish an exemption
from withholding with respect to each Holder, and any representations and forms
as shall reasonably be requested by the Administrative Trustees to assist them
in determining the extent of, and in fulfilling, the Trust's withholding
obligations. The Administrative Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to Distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to such Holder. In the event of
any claimed over-withholding, the Holder shall be limited to an action against
the applicable jurisdiction. If the amount required to be withheld was not
withheld from actual Distributions made, the Trust may reduce subsequent
Distributions by the amount of such withholding.
ARTICLE XI
AMENDMENTS AND MEETINGS
SECTION 11.1 AMENDMENTS.
(a) Except as otherwise provided in this Trust Agreement or by any
applicable terms of the Securities, this Trust Agreement may only be amended
only by a written instrument approved and executed by:
(i) the Sponsor;
(ii) the Administrative Trustees (or if there are more than two
Administrative Trustees a majority of the Administrative Trustees);
(iii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Property Trustee, the Property Trustee; and
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(iv) if the amendment affects the rights, powers, duties, obligations
or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Trust Agreement (including the terms of the Securities);
and
(B) an Opinion of Counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms to, the
terms of this Trust Agreement (including the terms of the Securities)
and that all conditions precedent, if any, in this Trust Agreement to
the execution and delivery of such amendment have been satisfied; and
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to be classified other than as a grantor
trust for purposes of United States federal income taxation;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) This Trust Agreement shall not be amended without the consent of the
Sponsor, a majority of the Administrative Trustees and the Holders of at least a
66 2/3% in Liquidation Amount of the Securities if such amendment would:
(A) adversely affect the powers, preferences or special rights of
the Securities, whether by way of amendment to this Trust Agreement or
otherwise; or
(B) result in the dissolution, winding-up or termination of the
Trust other than pursuant to the terms of this Trust Agreement;
provided that if any amendment referred to in clause (A) above would adversely
affect only the Preferred Securities or the Common Securities, then only the
Holders of the affected class will be entitled to vote on such amendment, and
such amendment shall not be effective except with the approval of a 66 2/3% in
Liquidation Amount of the Holders of the class of Securities affected thereby.
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(d) Neither Article IV nor the rights of the holders of the Common
Securities under Article V and Article VI to increase or decrease the number of,
and appoint and remove, Trustees shall be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.
(e) This Section 11.1 shall not be amended without the consent of all of
the Holders.
(f) This Trust Agreement may not be amended without the consent of each
Holder affected thereby to:
(i) change the amount or timing of any Distribution of the Securities
or otherwise adversely affect the amount of any Distribution required to be
made in respect of the Securities as of a specified date;
(ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after the due date of such payment;
or
(iii) change the Repurchase Right of any holder of a Unit.
(g) This Trust Agreement may be amended by the Administrative Trustees
without the consent of any other Person, including the Holders to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Trust Agreement that
may be inconsistent with any other provision of this Trust Agreement;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or privileges of the
holders of the Securities;
(v) modify, eliminate or add to any provisions of this Trust Agreement
to such extent as shall be necessary to ensure that the Trust will be
classified as a grantor trust for United States federal income tax purposes
at all times that any Securities are outstanding or to ensure that the
Trust will not be required to register as an Investment Company under the
Investment Company Act; or
(vi) facilitate the tendering, remarketing and settlement of the
Preferred Securities as contemplated by Section 6.6(s).
provided, however, that none of the foregoing actions shall adversely affect in
any material respect the interests of the Holders, and any such amendments of
this Trust Agreement shall become effective when notice thereof is given to the
Holders.
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SECTION 11.2 MEETINGS OF THE HOLDERS; ACTION BY WRITTEN CONSENT.
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Administrative Trustees to consider and act on any matter on which
Holders of such class of Securities are entitled to act under the terms of this
Trust Agreement, or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Administrative Trustees shall
call a meeting of the Holders of such class if directed to do so by the Holders
of at least 10% in Liquidation Amount of such class of Securities. Such
direction shall be given by delivering to the Administrative Trustees one or
more notices in writing stating that the signing Holders wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holder or Holders calling a meeting shall specify in writing the
Securities held by the Holder or Holders exercising the right to call a meeting
and only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings of Holders:
(i) Notice of any such meeting shall be given to all the Holders
having a right to vote thereat at least seven days and not more than 60
days before the date of such meeting. Whenever a vote, consent or approval
of the Holders is permitted or required under this Trust Agreement or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at a
meeting of the Holders. Any action that may be taken at a meeting of the
Holders may be taken without a meeting and without prior notice if a
consent in writing setting forth the action so taken is signed by the
Holders owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such action
at a meeting at which all Holders having a right to vote thereon were
present and voting. Prompt notice of the taking of action without a meeting
shall be given to the Holders entitled to vote who have not consented in
writing. The Administrative Trustees may specify that any written ballot
submitted to the Holders for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by the
Administrative Trustees.
(ii) Each Holder may authorize any Person to act for it by proxy on
any and all matters in which such Holder is entitled to participate,
including waiving notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of eleven months from
the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Holder executing such proxy. Except as
otherwise provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and the Holders
were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders shall be conducted by the
Administrative Trustees or by such other Person that the Administrative
Trustees may designate.
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(iv) Unless the Delaware Business Trust Act, this Trust Agreement, the
Trust Indenture Act or the listing rules of any stock exchange on which the
Preferred Securities are then listed or trading otherwise provides, the
Administrative Trustees, in their sole discretion, shall establish all
other provisions relating to meetings of Holders, including notice of the
time, place or purpose of any meeting at which any matter is to be voted on
by any Holders, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any
such right to vote.
ARTICLE XII
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE
SECTION 12.1 REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE.
The initial Property Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Trust Agreement, and each Successor Property
Trustee represents and warrants to the Trust and the Sponsor at the time of the
Successor Property Trustee's acceptance of its appointment as Property Trustee,
that:
(a) the Property Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its organization, with trust powers and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this Trust
Agreement;
(b) the Property Trustee satisfies the requirements set forth in
Section 5.3(a);
(c) the execution, delivery and performance by the Property Trustee of
this Trust Agreement have been duly authorized by all necessary corporate
action on the part of the Property Trustee; this Trust Agreement has been
duly executed and delivered by the Property Trustee and constitutes a
legal, valid and binding obligation of the Property Trustee enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Trust Agreement by
the Property Trustee do not conflict with, or constitute a breach of, the
charter or by-laws of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any federal or state banking authority is required for the
execution, delivery or performance by the Property Trustee of this Trust
Agreement.
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SECTION 12.2 REPRESENTATIONS AND WARRANTIES OF THE DELAWARE TRUSTEE.
The initial Delaware Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Trust Agreement, and each Successor Delaware
Trustee represents and warrants to the Trust and the Sponsor at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee,
that:
(a) the Delaware Trustee is, if not a natural person, a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with trust power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this Trust
Agreement;
(b) the Delaware Trustee satisfies the requirements set forth in
Section 5.2(a);
(c) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement have been duly authorized, if the Delaware Trustee is
not a natural person, by all necessary corporate action on the part of the
Delaware Trustee; this Trust Agreement has been duly executed and delivered
by the Delaware Trustee and constitutes a legal, valid and binding
obligation of the Delaware Trustee enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered
in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Trust Agreement by
the Delaware Trustee, if not a natural person, do not conflict with, or
constitute a breach of, the charter or by-laws of the Delaware Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any federal or state banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Trust
Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 NOTICES.
All notices provided for in this Trust Agreement shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) if given to the Trust or the Administrative Trustees, at the
Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Property Trustee, the Delaware Trustee and the
Holders):
IndyMac Capital Trust I
c/o IndyMac Bancorp, Inc.
000 Xxxxx Xxxx Xxxxxx
00
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Administrative Trustee
Facsimile No.: (000) 000-0000
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of
to the Administrative Trustees, the Property Trust and the Holders):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Facsimile No.: (000) 000-0000
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property
Trustee may give notice of to the Administrative Trustees, the Delaware
Trustee and the Holders):
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Facsimile No.: (000) 000-0000
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder
of the Common Securities may give notice to the Property Trustee, the
Delaware Trustee and the Trust):
IndyMac Bancorp, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
(e) if given to any Holder of Preferred Securities, to the Clearing
Agency, and if Definitive Preferred Securities have been issued, at such
Holder's address set forth on the books and records of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
83
SECTION 13.2 GOVERNING LAW.
This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware.
SECTION 13.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust be classified as a
grantor trust for United States federal income tax purposes. The provisions of
this Trust Agreement shall be interpreted to further this intention of the
parties.
SECTION 13.4 HEADINGS.
Headings contained in this Trust Agreement are inserted for convenience of
reference only and do not affect the interpretation of this Trust Agreement or
any provision.
SECTION 13.5 SUCCESSORS AND ASSIGNS.
Whenever in this Trust Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Trust Agreement by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6 PARTIAL ENFORCEABILITY.
If any provision of this Trust Agreement or the application of such
provision to any Person or circumstance shall be held invalid, the remainder of
this Trust Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7 COUNTERPARTS.
This Trust Agreement may contain more than one counterpart of the signature
page and this Trust Agreement may be executed by the affixing of the signature
of each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
SECTION 13.8 THE EXCHANGE AGENT.
The Exchange Agent undertakes to perform, with respect to the Preferred
Securities, such duties and only such duties as are specifically set forth in
this Trust Agreement, and no implied covenants or obligations shall be read into
this Trust Agreement against the Exchange Agent. In the performance of such
duties, the Exchange Agent shall be entitled to the same rights and powers as
are granted to the Property Trustee, except that the Exchange Agent shall act as
agent solely for the Holders of the Preferred Securities who seek to exchange
such Preferred Securities pursuant to Sections 6.7 and 6.8.
84
IN WITNESS WHEREOF, the undersigned have caused this Amended and Restated
Trust Agreement to be executed as of the day and year first above written.
INDYMAC BANCORP, INC., as Sponsor and
Debenture Issuer
By:
-------------------------------------
Name:
Title:
----------------------------------------
Xxxxx X. Xxxxxx, as Administrative
Trustee
----------------------------------------
Xxxxxxx X. Xxxxxxx, as Administrative
Trustee
WILMINGTON TRUST COMPANY, as Property
Trustee
By:
-------------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY, as Delaware
Trustee
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Paying
Agent, Registrar, Transfer Agent and
Authenticating Agent
By:
-------------------------------------
Name:
Title:
EXHIBIT A
{FORM OF PREFERRED SECURITY CERTIFICATE}
This Preferred Security is a Global Preferred Security within the meaning
of the Trust Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (the "Clearing Agency"), or
a nominee of the Clearing Agency. This Preferred Security is exchangeable for
Preferred Securities registered in the name of a person other than the Clearing
Agency or its nominee only in the limited circumstances described in the Trust
Agreement, and no transfer of this Preferred Security (other than a transfer of
this Preferred Security as a whole by the Clearing Agency to a nominee of the
Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or
another nominee of the Clearing Agency) may be registered except in limited
circumstances. Unless this certificate is presented by an authorized
representative of the Clearing Agency to IndyMac Capital Trust I or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of the Clearing Agency (and any payment hereon is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of the Clearing Agency), and except as otherwise provided in the
Trust Agreement, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
of
INDYMAC CAPITAL TRUST I
6% Preferred Securities
(stated liquidation amount $50 per Preferred Security)
Certificate No.: Number of Preferred Securities _______
CUSIP No.: 00000X000
IndyMac Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the
"Holder") is the registered owner of _________________ preferred securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the Preferred Securities (stated liquidation amount $50 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 designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Trust Agreement of the Trust, dated as of November 14, 2001 (as the same may be
amended from time to time (the "Trust Agreement"), among IndyMac Bancorp, Inc.,
as Sponsor, Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx, as Administrative Trustees,
Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, The Bank of New York, as Paying Agent, Registrar, Transfer
Agent and Authenticating Agent, and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust. Capitalized terms used but not
defined herein shall have the meaning given them in the Trust Agreement. The
Holder is entitled to the benefits of the Guarantee Agreement, dated as of
November 14, 2001, (as the same may be amended from time to time) between
IndyMac Bancorp, Inc., as Guarantor, and The Bank of New York, as Guarantee
Trustee, in respect of the Preferred Securities. The Sponsor will provide a copy
of the Trust Agreement, the Guarantee Agreement and the Indenture (including any
supplemental indenture) to a Holder without charge upon written request to the
Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Preferred Securities as
evidence of undivided beneficial interests in the Debentures.
Exhibit A-1
IN WITNESS WHEREOF, the Trust has executed this certificate this _____ day
of ___________, 2001.
INDYMAC CAPITAL TRUST I
By:
-------------------------------------
Name:
Administrative Trustee
CERTIFICATE OF
AUTHENTICATION
This is one of the Preferred
Securities referred to in the
within-mentioned Trust Agreement.
Dated: ___________, 2001
THE BANK OF NEW YORK, as
Authenticating Agent
By: __________________________
Authorized Signatory
Exhibit A-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate 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
Security Certificate on the books and records of the Trust. The agent may
substitute another to act for him.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the Preferred Security Certificate)
Signature Guarantee*:
--------
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
Exhibit A-3
SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL PREFERRED SECURITY(1)
This Global Preferred Security shall represent 0 Preferred Securities
unless otherwise indicated below.
----------
(1) Insert in Global Preferred Securities only.
Exhibit A-4
The following increases or decreases in this Global Preferred Security have
been made:
Amount of increase Number of Preferred
Amount of decrease in Number of Securities evidenced
in Number of Preferred by this Global
Preferred Securities Securities Preferred
evidenced by this evidenced by this Security Signature of
Global Preferred Global Preferred following such authorized
Date Security Security decrease or increase officer of Agent
------------------------------------------------------------------------------------------------
Exhibit A-5
EXHIBIT B
{FORM OF COMMON SECURITY CERTIFICATE}
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED
IN THE TRUST AGREEMENT (AS DEFINED BELOW)
CERTIFICATE EVIDENCING COMMON SECURITIES
of
INDYMAC CAPITAL TRUST I
6% Common Securities
(stated liquidation amount $50 per Common Security)
Certificate No.: Number of Common Securities _______
IndyMac Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that IndyMac Bancorp,
Inc. (the "Holder") is the registered owner of ___________ common securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the Common Securities (stated liquidation amount $50 per Common
Security) (the "Common Securities"). Except as provided in the Trust Agreement
(as defined below), the Common Securities are not transferable, and to the
fullest extent permitted by law, any attempted transfer thereof shall be void.
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Common Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated Trust
Agreement of the Trust, dated as of November 14, 2001 (as the same may be
amended from time to time (the "Trust Agreement"), among IndyMac Bancorp, Inc.,
as Sponsor, Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx, as Administrative Trustees,
Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, The Bank of New York, as Paying Agent, Registrar, Transfer
Agent and Authenticating Agent, and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust. Capitalized terms used but not
defined herein shall have the meaning given them in the Trust Agreement. The
Holder is entitled to the benefits of the Guarantee Agreement, dated as of
November 14, 2001 (as the same may be amended from time to time), between
IndyMac Bancorp, Inc., as Guarantor, and The Bank of New York, as Guarantee
Trustee, in respect of the Common Securities. The Sponsor will provide a copy of
the Trust Agreement, the Guarantee Agreement and the Indenture (including any
supplemental indenture) to a Holder without charge upon written request to the
Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and the Guarantee and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of undivided beneficial interests in the Debentures.
Exhibit B-1
IN WITNESS WHEREOF, the Trust has executed this certificate this _____ day
of _____________, 2001.
INDYMAC CAPITAL TRUST I
By:
-------------------------------------
Name:
Administrative Trustee
Exhibit B-2
