Exhibit 4.13
AMENDED AND RESTATED TRUST AGREEMENT
among
NORTHERN TRUST CORPORATION
as Depositor
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Property Trustee
BANK ONE DELAWARE, INC.,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ___________
NTC CAPITAL [III/IV/V]
NTC CAPITAL [III/IV/V]
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
(S) 310 (a)(1) 8.7
(a)(2) ................................................ 8.7
(a)(3) ................................................ 8.9
(a)(4) ................................................ 2.7(a)(ii)
(b) ................................................... 8.8
(S) 311 (a) ................................................... 8.13
(b) ................................................... 8.13
(S) 312 (a) ................................................... 5.8
(b) ................................................... 5.8
(c) ................................................... 5.8
(S) 313 (a) ................................................... 8.15(a)
(a)(4) ................................................ 8.15(b)
(b) ................................................... 8.15(b)
(c) ................................................... 10.8
(d) ................................................... 8.15(c)
(S) 314 (a) ................................................... 8.16
(b) ................................................... Not Applicable
(c)(1) ................................................ 8.17
(c)(2) ................................................ 8.17
(c)(3) ................................................ Not Applicable
(d) ................................................... Not Applicable
(e) ................................................... 1.1, 8.17
(S) 315 (a) ................................................... 8.1(a), 8.3(a)
(b) ................................................... 8.2, 10.8
(c) ................................................... 8.1(a)
(d) ................................................... 8.1, 8.3
(e) ................................................... Not Applicable
(S) 316 (a) ................................................... Not Applicable
(a)(1)(A) ............................................. Not Applicable
(a)(1)(B) ............................................. Not Applicable
(a)(2) ................................................ Not Applicable
(b) ................................................... 5.15
(c) ................................................... 6.7
(S) 317 (a)(1) ................................................. Not Applicable
(a)(2) ................................................. Not Applicable
(b) .................................................... 5.10
(S) 318 (a) .................................................... 10.10
_____
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
iii
TABLE OF CONTENTS
Page
----
ARTICLE I Defined Terms .............................................................................. 1
Section 1.1 Definitions ....................................................................... 1
ARTICLE II Continuation of the Issuer Trust .......................................................... 12
Section 2.1 Name .............................................................................. 12
Section 2.2 Office of the Delaware Trustee; Principal Place of Business ....................... 12
Section 2.3 Initial Contribution of Trust Property; Organizational Expenses ................... 13
Section 2.4 Issuance of the Preferred Securities .............................................. 13
Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Debt Securities ... 13
Section 2.6 Continuation of Trust ............................................................. 14
Section 2.7 Authorization to Enter into Certain Transactions .................................. 14
Section 2.8 Assets of Trust ................................................................... 18
Section 2.9 Title to Trust Property ........................................................... 18
ARTICLE III Payment Account .......................................................................... 19
Section 3.1 Payment Account ................................................................... 19
ARTICLE IV Distributions; Redemption ................................................................. 19
Section 4.1 Distributions ..................................................................... 19
Section 4.2 Redemption ........................................................................ 20
Section 4.3 Subordination of Common Securities ................................................ 22
Section 4.4 Payment Procedures ................................................................ 23
Section 4.5 Tax Returns and Reports ........................................................... 23
Section 4.6 Payment of Taxes, Duties and Other Expenses of the Issuer Trust ................... 23
Section 4.7 Payments under Indenture or Pursuant to Direct Actions ............................ 24
Section 4.8 Liability of the Holder of Common Securities ...................................... 24
ARTICLE V Trust Securities Certificates .............................................................. 24
Section 5.1 Initial Ownership ................................................................. 24
Section 5.2 The Trust Securities Certificates ................................................. 24
Section 5.3 Execution and Delivery of Trust Securities Certificates ........................... 25
Section 5.4 Book-Entry Preferred Securities ................................................... 25
Section 5.5 Registration of Transfer and Exchange of Preferred Securities Certificates ........ 27
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Section 5.6 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates ................ 29
Section 5.7 Persons Deemed Holders ............................................................ 29
Section 5.8 Access to List of Holders' Names and Addresses .................................... 29
Section 5.9 Maintenance of Office or Agency ................................................... 30
Section 5.10 Appointment of Paying Agent ....................................................... 30
Section 5.11 Ownership of Common Securities by Depositor ....................................... 30
Section 5.12 Notices to Clearing Agency ........................................................ 31
Section 5.13 Rights of Holders; Waivers of Past Defaults ....................................... 31
ARTICLE VI Acts of Holders; Meetings; Voting .......................................................... 33
Section 6.1 Limitations on Voting Rights ...................................................... 33
Section 6.2 Notice of Meetings ................................................................ 34
Section 6.3 Meetings of Holders of the Preferred Securities ................................... 34
Section 6.4 Voting Rights ..................................................................... 35
Section 6.5 Proxies, etc ...................................................................... 35
Section 6.6 Holder Action by Written Consent .................................................. 35
Section 6.7 Record Date for Voting and Other Purposes ......................................... 36
Section 6.8 Acts of Holders ................................................................... 36
Section 6.9 Inspection of Records ............................................................. 37
ARTICLE VII Representations and Warranties ............................................................ 37
Section 7.1 Representations and Warranties of the Property Trustee and the Delaware Trustee ... 37
Section 7.2 Representations and Warranties of Depositor ....................................... 38
ARTICLE VIII The Issuer Trustees ...................................................................... 39
Section 8.1 Certain Duties and Responsibilities ............................................... 39
Section 8.2 Certain Notices ................................................................... 41
Section 8.3 Certain Rights of Property Trustee ................................................ 42
Section 8.4 Not Responsible for Recitals or Issuance of Securities ............................ 44
Section 8.5 May Hold Securities ............................................................... 44
Section 8.6 Compensation; Indemnity; Fees ..................................................... 44
Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer Trustees and
Administrative Trustees ........................................................... 45
Section 8.8 Conflicting Interests ............................................................. 46
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Section 8.9 Co-Trustees and Separate Trustee ................................................ 46
Section 8.10 Resignation and Removal; Appointment of Successor ............................... 48
Section 8.11 Acceptance of Appointment by Successor .......................................... 49
Section 8.12 Merger, Conversion, Consolidation or Succession to Business ..................... 50
Section 8.13 Preferential Collection of Claims Against Depositor or Issuer Trust ............. 50
Section 8.14 Property Trustee May File Proofs of Claim ....................................... 50
Section 8.15 Reports by Property Trustee ..................................................... 51
Section 8.16 Reports to the Property Trustee ................................................. 52
Section 8.17 Evidence of Compliance with Conditions Precedent ................................ 52
Section 8.18 Number of Issuer Trustees ....................................................... 52
Section 8.19 Delegation of Power ............................................................. 52
Section 8.20 Appointment of Administrative Trustees .......................................... 53
ARTICLE IX Dissolution, Liquidation and Merger ....................................................... 53
Section 9.1 Dissolution Upon Expiration Date ................................................ 53
Section 9.2 Early Dissolution ............................................................... 53
Section 9.3 Dissolution ..................................................................... 54
Section 9.4 Liquidation ..................................................................... 54
Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust .......... 55
ARTICLE X Miscellaneous Provisions ................................................................... 56
Section 10.1 Limitation of Rights of Holders ................................................. 56
Section 10.2 Amendment ....................................................................... 57
Section 10.3 Separability .................................................................... 58
Section 10.4 Governing Law ................................................................... 58
Section 10.5 Payments Due on Non-Business Day ................................................ 58
Section 10.6 Successors ...................................................................... 58
Section 10.7 Headings ........................................................................ 59
Section 10.8 Reports, Notices and Demands .................................................... 59
Section 10.9 Agreement Not to Petition ....................................................... 60
Section 10.10 Trust Indenture Act; Conflict with Trust Indenture Act .......................... 60
Section 10.11 Acceptance of Terms of Trust Agreement, Guarantee and Indenture ................. 60
iii
Section 10.12 Counterparts .............................................. 61
iv
AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___________, among (i)
Northern Trust Corporation, a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) Bank One Trust Company, National Association, a
national banking association, as property trustee (in such capacity, the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) Bank One Delaware, Inc., a
Delaware corporation, as Delaware trustee (in such capacity, the "Delaware
Trustee"), (iv) Xxxxx X. Xxxxxxxxx, an individual, and Xxxxxx Xxxxxxxxxxx, an
individual, each of whose address is c/o Northern Trust Corporation, Fifty Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees being referred to collectively as the
"Issuer Trustees"), and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Delaware Trustee and certain of the
Administrative Trustees named therein have heretofore duly declared and
established a statutory trust pursuant to the Delaware Statutory Trust Act by
entering into that certain Trust Agreement, dated as of [December 27, 1996, as
amended and restated as of May 19, 2003] [May 19, 2003] (the "Original Trust
Agreement"), and by the execution and filing by the Delaware Trustee with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on [December 27, 1996] [May 19, 2003], attached as Exhibit A; and
WHEREAS, the parties hereto desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities by the Issuer Trust to the
Depositor, (ii) the issuance and sale of the Preferred Securities by the Issuer
Trust pursuant to the Underwriting Agreement, and (iii) the acquisition by the
Issuer Trust from the Depositor of all of the right, title and interest in the
Debt Securities;
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles;
(e) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section or
an Exhibit, as the case may be, of or to this Trust Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debt
Securities for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble of this Trust Agreement solely in such
individual's capacity as Administrative Trustee of the Issuer Trust and not in
such individual's individual capacity, or such Administrative Trustee's
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Book-Entry Preferred Security, the rules and procedures of the
Clearing Agency for such Book-Entry Preferred Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
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"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance
of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor or the
Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or officers of the Depositor to which authority
to act on behalf of the Board of Directors has been delegated, and to be in full
force and effect on the date of such certification, and delivered to the Issuer
Trustees.
"Book-Entry Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Book-Entry Preferred Securities.
"Book-Entry Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.4.
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"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in the City of New York or the City of Chicago,
Illinois are authorized or required by law or executive order to remain closed,
or (c) a day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Indenture Trustee is closed for business.
"Capital Treatment Event" means the reasonable determination by the
Depositor that, as a result of any amendment to, or change (including any
proposed change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such proposed change, pronouncement, action or decision is
announced on or after the date of issuance of the Preferred Securities
hereunder, there is more than an insubstantial risk that the Depositor will not
be entitled to treat an amount equal to the Liquidation Amount of the Preferred
Securities as "Tier 1 Capital" (or the then equivalent thereof) for purposes of
the capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Depositor.
"Certificate Depository Agreement" means the letter of representations
among the Issuer Trust, the Depositor and DTC, as the initial Clearing Agency,
dated as of the Closing Date, as the same may be amended and supplemented from
time to time.
"Certificate of Trust" has the meaning specified in the recitals hereof, as
amended from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means the first Time of Delivery, which date is also the
date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit B.
4
"Common Security" means an undivided beneficial interest in the assets of
the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located in Chicago,
Illinois, and (ii) when used with respect to the Indenture Trustee, the
principal office of the Indenture Trustee located in Chicago, Illinois.
"Debt Securities" means the Depositor's junior subordinated debt securities
issued pursuant to the Indenture.
"Debt Security Redemption Date" means, with respect to any Debt Securities
to be redeemed under the Indenture, the date fixed for redemption of such Debt
Securities under the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (i) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificates as provided in Section 5.2 or 5.4, and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.2, 5.4 or 5.5.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code (S) 3801 et seq., as it may be amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee
of the Issuer Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor Delaware Trustee appointed as herein
provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 5.13(c).
"Distribution Amount" means, with respect to any Preferred Security and any
Distribution Period, the amount of Distributions payable in respect of such
Distribution Period, which amount shall be calculated by applying the
Distribution Rate to the Liquidation Amount of each Trust Security Outstanding
at the commencement of the Distribution Period, by multiplying each such amount
by the actual number of days in the Distribution Period concerned (which actual
number of days shall include the first day but exclude the last day of such
Distribution Period) divided by 360 and rounding the resultant figure upwards to
the nearest cent (half a cent being rounded upwards). The determination of the
Distribution Rate and the Distribution Amount by or on behalf of the Issuer
Trust shall (in the absence of manifest error) be final and binding on all
parties.
5
"Distribution Date" has the meaning specified in Section 4.1(a)(i).
"Distribution Period" means the period of time beginning on any
Distribution Date and ending on the day immediately preceding the next
succeeding Distribution Date.
"Distribution Rate" means, with respect to any Distribution Period, a rate
per annum equal to the Interest Rate (as defined in the Debt Securities) with
respect to the Interest Period under (and as defined in) the Debt Securities
that begins on the same date as such Distribution Period begins and ends on the
same date as such Distribution Period ends.
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Early Dissolution Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) the occurrence of an Indenture Event of Default; or
(b) default by the Issuer Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(c) default by the Issuer Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in this Trust Agreement
(other than those specified in clause (b) or (c) above) and continuation of
such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Issuer Trustees and to the
Depositor by the Holders of at least 25% in aggregate Liquidation Amount of
the Outstanding Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within 90
days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any successor
statute thereto, in each case as amended from time to time.
6
"Expense Agreement" means the Agreement as to Expenses and Liabilities,
dated as of the Closing Date, between the Depositor and the Issuer Trust,
substantially in the form attached as Exhibit C, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this Trust Agreement the Federal Reserve is not existing and performing the
duties now assigned to it, then the body performing such duties at such time.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and Bank One Trust Company, National Association, as guarantee
trustee, contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
are registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Statutory Trust Act.
"Indemnified Person" has the meaning specified in Section 8.6(c).
"Indenture" means the Junior Subordinated Indenture, dated as of January 1,
1997, between the Depositor and Bank One Trust Company, National Association, as
successor to The First National Bank of Chicago, as trustee, as amended or
supplemented from time to time.
"Indenture Event of Default" means any "Event of Default" specified in
Section 5.1 of the Indenture.
"Indenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Indenture Trustee" means Bank One Trust Company, National Association, as
successor to The First National Bank of Chicago, solely in its capacity as
trustee pursuant to the Indenture and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee appointed as
provided in the Indenture.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Issuer Trust" means the Delaware statutory trust known as "NTC Capital
[III/IV/V]" which was created on [December 27, 1996] [May 19, 2003] under the
Delaware Statutory Trust Act pursuant to the Original Trust Agreement and the
filing of the Certificate of Trust, and continued pursuant to this Trust
Agreement.
7
"Issuer Trustees" has the meaning specified in the preamble to this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debt Securities to be contemporaneously redeemed in accordance with
the Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, (b) with respect to a distribution of Debt Securities to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Issuer Trust, Debt Securities having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Debt
Securities are distributed, and (c) with respect to any distribution of
Additional Amounts to Holders of Trust Securities, Debt Securities having a
principal amount equal to the Liquidation Amount of the Trust Securities in
respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date of the winding-up of the Issuer Trust
upon the occurrence of an Early Dissolution Event specified in clause (a), (b)
or (d) of Section 9.2 or upon the Expiration Date, as set forth in Section 9.4.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or "Majority
in Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Preferred Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Preferred Securities or Common Securities, as the case may be.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman, a Vice Chairman, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of such Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officers'
Certificate;
8
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Depositor or any Affiliate of the Depositor.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent; provided that, if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu
of which other Trust Securities have been executed and delivered pursuant
to Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Issuer Trustee or any Affiliate
of the Depositor or of any Issuer Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Issuer Trustee shall
be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Issuer Trustee
knows to be so owned shall be so disregarded, and (b) the foregoing shall not
apply at any time when all of the outstanding Preferred Securities are owned by
the Depositor, one or more of the Issuer Trustees and/or any such Affiliate.
Preferred Securities so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
9
"Owner" means each Person who is the beneficial owner of Book-Entry
Preferred Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee in its corporate trust department for
the benefit of the Holders in which all amounts paid in respect of the Debt
Securities will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Holders in accordance with Sections 4.1 and
4.2.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association, or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit D.
"Preferred Security" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Property Trustee
of the Issuer Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debt Security Redemption Date and the stated maturity of the
Debt Securities shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debt Securities.
"Relevant Trustee" has the meaning specified in Section 8.10.
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"Responsible Officer" means, with respect to any Issuer Trustee, the
President, any Executive Vice President, any Senior Vice President, any Vice
President, any Assistant Vice President, the Secretary, any Assistant Secretary,
the Treasurer, any Assistant Treasurer, any Trust Officer or Assistant Trust
Officer, as applicable, of such Issuer Trustee.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Successor Preferred Securities" of any particular Preferred Securities
Certificate means every Preferred Securities Certificate issued after, and
evidencing all or a portion of the same beneficial interest in the Issuer Trust
as that evidenced by, such particular Preferred Securities Certificate; and, for
the purposes of this definition, any Preferred Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Preferred Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Preferred Securities Certificate.
"Tax Event" means the receipt by the Issuer Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any 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 as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which proposed
change, pronouncement or decision is announced on or after the date of issuance
of the Preferred Securities under this Trust Agreement, there is no more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90 days after
the date of such Opinion of Counsel, subject to United States federal income tax
with respect to income received or accrued on the Debt Securities, (ii) interest
payable by the Depositor on the Debt Securities is not, or within 90 days after
the date of such Opinion of Counsel, will not be, deductible by the Depositor,
in whole or in part, for United States federal income tax purposes or (iii) the
Issuer Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Time of Delivery" has the meaning specified in the Underwriting Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits, and (ii) for all purposes of this
Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debt Securities, (b) any cash on deposit in,
or owing to, the Payment Account, and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
___________, among the Issuer Trust, the Depositor and the Underwriters named
therein, including any applicable terms agreement or pricing agreement, as the
same may be amended from time to time.
"Vice President", when used with respect to the Depositor, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
ARTICLE II
Continuation of the Issuer Trust
Section 2.1 Name.
The trust continued hereby shall be known as "NTC Capital [III/IV/V]", as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other Issuer
Trustees, in which name the Issuer Trustees may conduct the business of the
Issuer Trust, make and execute contracts and other instruments on behalf of the
Issuer Trust and xxx and be sued.
Section 2.2 Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Three
Christiana Centre, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: ______________, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Holders, the Depositor,
the Property Trustee and the Administrative Trustees. The principal executive
office of the Issuer Trust is Fifty Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000.
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Section 2.3 Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Issuer Trust as they arise or shall, upon request of any Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee. The Depositor shall make no claim upon the Trust Property
for the payment of such expenses.
Section 2.4 Issuance of the Preferred Securities.
The Depositor, both on its own behalf and on behalf of the Issuer Trust
pursuant to the Original Trust Agreement, has executed and delivered the
Underwriting Agreement. On the Closing Date, an Administrative Trustee, on
behalf of the Issuer Trust, shall execute in accordance with Sections 5.2, 5.3
and 8.9(a), and the Property Trustee shall deliver to the Underwriters,
Preferred Securities Certificates, registered in the names requested by the
Underwriters, evidencing an aggregate amount of _______________ Preferred
Securities having an aggregate Liquidation Amount of ________________ against an
aggregate purchase price of such Preferred Securities of ______________. If the
underwriters exercise their Over-Allotment Option (as defined in the
Underwriting Agreement), then an Administrative Trustee, on behalf of the Issuer
Trust, shall execute in accordance with Sections 5.2, 5.3 and 8.9(a), and the
Property Trustee shall deliver to the Underwriters, additional Preferred
Securities Certificates, registered in the names requested by the Underwriters,
evidencing an aggregate amount of up to _______________ Preferred Securities
having an aggregate Liquidation Amount of up to ________________ against an
aggregate purchase price of such Preferred Securities of up to ______________.
Section 2.5 Issuance of the Common Securities; Subscription and Purchase of
Debt Securities.
(a) On the Closing Date, an Administrative Trustee, on behalf of the Issuer
Trust, shall execute in accordance with Sections 5.2, 5.3 and 8.9(a) and the
Property Trustee shall deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, evidencing an aggregate amount of
_______________ Common Securities having an aggregate Liquidation Amount of
$_____________, against the aggregate purchase price of such Common Securities
of $______________. Contemporaneously therewith, an Administrative Trustee, on
behalf of the Issuer Trust, shall subscribe to and purchase from the Depositor
Debt Securities, registered in the name of the Property Trustee on behalf of the
Issuer Trust, having an aggregate principal amount equal to _______________
(being the sum of the amounts delivered to the Property Trustee pursuant to (i)
the second sentence of Section 2.4 and (ii) the first sentence of this Section
2.5(a)), and, in satisfaction of the purchase price for such Debt Securities,
the Property Trustee, on behalf of the Issuer Trust, shall deliver to the
Depositor the sum of $____________________.
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(b) If the underwriters exercise their Over-Allotment Option, then an
Administrative Trustee, on behalf of the Issuer Trust, shall execute in
accordance with Sections 5.2, 5.3 and 8.9(a) and the Property Trustee shall
deliver to the Depositor Common Securities Certificates, registered in the name
of the Depositor, evidencing an aggregate amount of up to _______________ Common
Securities having an aggregate Liquidation Amount of up to $_____________,
against the aggregate purchase price of such Common Securities of up to
$______________. Contemporaneously therewith, an Administrative Trustee, on
behalf of the Issuer Trust, shall subscribe to and purchase from the Depositor
Debt Securities, registered in the name of the Property Trustee on behalf of the
Issuer Trust, having an aggregate principal amount equal to _______________
(being the sum of the amounts delivered to the Property Trustee pursuant to (i)
the third sentence of Section 2.4 and (ii) the first sentence of this Section
2.5(b)), and, in satisfaction of the purchase price for such Debt Securities,
the Property Trustee, on behalf of the Issuer Trust, shall deliver to the
Depositor the sum of $____________________.
Section 2.6 Continuation of Trust.
The exclusive purposes and functions of the Issuer Trust are (a) to issue
and sell Trust Securities, (b) to use the proceeds from such sale to acquire the
Debt Securities, and (c) to engage in those activities necessary or incidental
thereto. The Depositor hereby reaffirms the appointment of the Property Trustee
and the Delaware Trustee and appoints the Administrative Trustees as trustees of
the Issuer Trust, to have all the rights, powers and duties to the extent set
forth herein, and the respective Issuer Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Issuer Trust and the Holders. The Administrative Trustees shall have all rights,
powers and duties set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Issuer Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the trustees of the Issuer Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Statutory Trust Act and for
taking such actions as are required to be taken by a Delaware trustee under the
Delaware Statutory Trust Act.
Section 2.7 Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees shall conduct the affairs of the Issuer Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Issuer Trustees shall have the authority to enter
into all transactions and agreements determined by the Issuer Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Issuer Trustees under this Trust Agreement, and to perform all acts in
furtherance thereof, including, without limitation, the following:
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(i) As among the Issuer Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Issuer Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to execute, deliver
and perform on behalf of the Issuer Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of the
Issuer Trust;
(C) assisting in the registration of the Preferred Securities under
the Securities Act and under applicable state securities or blue sky laws
and the qualification of this Trust Agreement as a trust indenture under
the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the Depositor,
with the registration of the Preferred Securities under the Exchange Act
and with the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the Debt
Securities to the Holders in accordance with this Trust Agreement;
(F) the consent to the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust Agreement
(which consent shall not be unreasonably withheld);
(G) to the extent provided in this Trust Agreement, the winding up of
the affairs of and liquidation of the Issuer Trust and the execution and
filing of the certificate of cancellation with the Secretary of State of
Delaware;
(H) execution of the Trust Securities on behalf of the Issuer Trust in
accordance with this Trust Agreement;
(I) execution and delivery of closing certificates, if any, pursuant
to the Underwriting Agreement and application for a taxpayer identification
number for the Issuer Trust;
(J) unless otherwise required by the Delaware Statutory Trust Act or
the Trust Indenture Act, to execute on behalf of the Issuer Trust (either
acting alone or together with any or all of the Administrative Trustees)
any documents
15
that the Administrative Trustees have the power to execute pursuant to
this Trust Agreement; and
(K) the taking of any action incidental to the foregoing as the
Issuer Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement.
(ii) As among the Issuer Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Issuer Trust with respect
to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debt Securities;
(C) the collection of interest, principal and any other payments
made in respect of the Debt Securities and the holding of such amounts
in the Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debt Securities;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debt Securities to the Holders
in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Issuer Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking of
any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect
to the terms of this Trust Agreement and protect and conserve the
Trust Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder); and
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(J) except as otherwise provided in this Section 2.7(a)(ii), the
Property Trustee shall have none of the duties, liabilities, powers or
the authority of the Administrative Trustees set forth in Section
2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees acting on behalf of the Issuer Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Issuer Trustees (acting on
behalf of the Issuer Trust) shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would reasonably be expected to
cause the Issuer Trust to become taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt or (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property. The Property Trustee shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto and the taking of any action
necessary or desirable to sell the Preferred Securities in a transaction or
a series of transactions pursuant thereto;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the taking of any and all such acts, other than actions that
must be taken by or on behalf of the Issuer Trust, and the advice to the
Issuer Trust of actions that must be taken by or on behalf of the Issuer
Trust, and the preparation for execution and filing of any documents to be
executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as
the Depositor deems necessary or advisable in order to comply with the
applicable laws of any such states in connection with the sale of the
Preferred Securities;
(iii) the preparation for filing by the Issuer Trust and execution on
behalf of the Issuer Trust of an application to the Nasdaq Stock Market or
any national stock exchange or other interdealer quotation system for
listing upon notice of issuance of any Preferred Securities and filing with
such exchange or interdealer quotation system such
17
notifications and documents as may be necessary from time to time to
maintain such listing;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Exchange Act,
including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Issuer Trustees
are authorized and directed to conduct the affairs of the Issuer Trust and to
operate the Issuer Trust so that the Issuer Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act,
and will not be taxable as a corporation or classified as other than a grantor
trust for United States federal income tax purposes and so that the Debt
Securities will be treated as indebtedness of the Depositor for United States
federal income tax purposes. In this connection, the Depositor, the
Administrative Trustees and the Property Trustee are authorized to take any
action, not inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that they determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect in
any material respect the interests of the Holders of the Outstanding Preferred
Securities. In no event shall the Depositor or the Issuer Trustees be liable to
the Issuer Trust or the Holders for any failure to comply with this section that
results from a change in law or regulation or in the interpretation thereof.
Section 2.8 Assets of Trust.
The assets of the Issuer Trust shall consist solely of the Trust Property.
Section 2.9 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.
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ARTICLE III
Payment Account
Section 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and its agents shall have exclusive
control and sole right of withdrawal with respect to the Payment Account for the
purpose of making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other property deposited or
held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Holders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debt Securities. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
Section 4.1 Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Amounts) will be made
on the Trust Securities at the rate and on the dates that payments of interest
(including of Additional Interest, as defined in the Indenture) are made on the
Debt Securities. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Issuer Trust available for the
payment of Distributions. Distributions shall accumulate from ______________,
and, except in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Debt Securities pursuant to the
Indenture, shall be payable quarterly in arrears on __________, __________,
___________ and ___________ of each year, commencing on ____________. If any
date on which a Distribution is otherwise payable on the Trust Securities is not
a Business Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on the date
on which such
19
payment was originally payable (each date on which Distributions are
payable in accordance with this Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to Distributions payable
at the Distribution Rate as in effect from time to time. The amount of
Distributions payable for any period less than a full Distribution Period
shall be computed on the basis of a 360-day year of twelve 30-day months
and the actual number of days elapsed in a partial month in a period.
Distributions payable for each full Distribution Period will be computed by
dividing the rate per annum by four. The amount of Distributions payable
for any period shall include any Additional Amounts in respect of such
period.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds then
on hand and available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day
(whether or not a Business Day) next preceding the relevant Distribution Date.
Section 4.2 Redemption.
(a) On each Debt Security Redemption Date and on the stated maturity of
the Debt Securities, the Issuer Trust will be required to redeem a Like Amount
of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price together with a statement that it is an
estimate and that the actual Redemption Price will be calculated on the
third Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price on
the date that such Redemption Price is calculated);
(iii) the CUSIP number or CUSIP numbers of the Preferred Securities
affected;
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(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(vi) if the Preferred Securities are not Book-Entry Preferred
Securities, the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debt Securities. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to the
extent that the Issuer Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, with respect to
Book-Entry Preferred Securities, irrevocably deposit with the Clearing Agency
for such Book-Entry Preferred Securities, to the extent available therefor,
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities. With respect to Preferred
Securities that are not Book-Entry Preferred Securities, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying Agent, to
the extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Preferred Securities upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
Trust Securities will cease to be Outstanding. In the event that any date on
which any Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case with the same force and
21
effect as if made on such date. In the event that payment of the Redemption
Price in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Issuer Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will continue
to accumulate, as set forth in Section 4.1, from the Redemption Date originally
established by the Issuer Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Preferred Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed shall be selected on a pro rata basis based upon their
respective Liquidation Amounts not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption, provided that if the Preferred Securities are
Book-Entry Preferred Securities, such selection shall be made in accordance with
the customary procedures for the Clearing Agency for the Preferred Securities.
The Property Trustee shall promptly notify the Securities Registrar in writing
of the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3 Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Amounts) on, the
Redemption Price of, and the Liquidation Distribution in respect of the Trust
Securities, as applicable, shall be made, subject to Section 4.2(e), pro rata
among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of Default
resulting from a Debt Security Event of Default specified in Section 5.1(1) or
5.1(2) of the Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts) on, Redemption Price of, or
Liquidation Distribution in respect of any Common Security, and no other payment
on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including any Additional Amounts) on all Outstanding
Preferred Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution on all Outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to
22
the payment in full in cash of all Distributions (including any Additional
Amounts) on, or the Redemption Price of, the Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Indenture Event of Default, the Holders of the Common Securities shall have
no right to act with respect to any such Event of Default under this Trust
Agreement until the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holders of the Common Securities, and only the Holders
of the Preferred Securities will have the right to direct the Property Trustee
to act on their behalf.
Section 4.4 Payment Procedures.
Payments of Distributions (including any Additional Amounts) or of the
Redemption Price, Liquidation Amount or any other amounts in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Clearing Agency, such Distributions shall
be made to the Clearing Agency in immediately available funds. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holders of the Common
Securities.
Section 4.5 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) all Internal Revenue Service forms
required to be filed in respect of the Issuer Trust in each taxable year of the
Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Issuer Trustees shall comply with
United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to Holders under
the Trust Securities.
Section 4.6 Payment of Taxes, Duties and Other Expenses of the Issuer
Trust.
The Depositor shall pay to the Issuer Trust, and reimburse the Issuer Trust
for, the full amount of any costs, expenses or liabilities of the Issuer Trust
(other than obligations of the Issuer Trust to pay the Holders of any Preferred
Securities or other similar interests in the Issuer Trust the amounts due such
Holders pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be), including, without limitation, any taxes, duties
or
23
governmental charges of whatsoever nature (other than withholding taxes) imposed
on the Issuer Trust by the United States or any other taxing authority. Such
payment obligation includes any such costs, expenses or liabilities of the
Issuer Trust that are required by applicable law to be satisfied in connection
with a dissolution of the Issuer Trust.
Section 4.7 Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or Owner with
respect to a Holder's Preferred Securities) has directly received pursuant to
Section 5.8 of the Indenture or Section 5.13 of this Trust Agreement.
Section 4.8 Liability of the Holder of Common Securities.
Any Holder of the Common Securities shall be liable for the debts and
obligations of the Issuer Trust in the manner and to the extent set forth with
respect to the Common Security holder (as defined in the Expense Agreement) and
agrees that it shall be subject to all liabilities to which the Common Security
holder may be subject, and shall make all payments that the Common Security
holder is required to make, under the terms of the Expense Agreement.
ARTICLE V
Trust Securities Certificates
Section 5.1 Initial Ownership.
Upon the creation of the Issuer Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are Outstanding, the Depositor shall
be the sole beneficial owner of the Issuer Trust.
Section 5.2 The Trust Securities Certificates.
(a) The Trust Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Issuer Trust by
manual signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the manual signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Issuer Trust, shall be validly issued and entitled to the benefits of this
Trust Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.5.
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(b) Upon their original issuance, Preferred Securities Certificates shall
be issued in the form of one or more Book-Entry Preferred Securities
Certificates registered in the name of DTC, as Clearing Agency, or its nominee
and deposited with DTC or a custodian for DTC for credit by DTC to the
respective accounts of the Owners thereof (or such other accounts as they may
direct).
(c) Upon each issuance of Common Securities, a single Common Securities
Certificate representing the Common Securities shall be issued to the Depositor
in the form of a definitive Common Securities Certificate.
Section 5.3 Execution and Delivery of Trust Securities Certificates.
At each Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Issuer Trust and delivered
to or upon the written order of the Depositor, executed by one authorized
officer thereof, without further corporate action by the Depositor, in
authorized denominations.
Section 5.4 Book-Entry Preferred Securities.
(a) Each Book-Entry Preferred Securities Certificate issued under this
Trust Agreement shall be registered in the name of the Clearing Agency or a
nominee thereof and delivered to such Clearing Agency or a nominee thereof or
custodian therefor, and each such Book-Entry Preferred Securities Certificate
shall constitute a single Preferred Securities Certificate for all purposes of
this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, no
Book-Entry Preferred Securities Certificate may be exchanged in whole or in part
for Preferred Securities Certificates registered, and no transfer of a
Book-Entry Preferred Securities Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Book-Entry Preferred Securities Certificates or a nominee thereof unless (i) the
Clearing Agency advises the Property Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Book-Entry Preferred Securities Certificates, and the Property
Trustee is unable to locate a qualified successor, (ii) the Issuer Trust at its
option advises the Clearing Agency in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) a Debt Security Event of
Default has occurred and is continuing. Upon the occurrence of any event
specified in clause (i), (ii) or (iii) above, the [Property Trustee] shall
notify the Clearing Agency and instruct the Clearing Agency to notify all Owners
of Book-Entry Preferred Securities, the Delaware Trustee and the Administrative
Trustees of the occurrence of such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same.
(c) If any Book-Entry Preferred Securities Certificate is to be exchanged
for other Preferred Securities Certificates or cancelled in part, or if any
other Preferred Securities
25
Certificate is to be exchanged in whole or in part for Book-Entry Preferred
Securities represented by a Book-Entry Preferred Securities Certificate, then
either (i) such Book-Entry Preferred Securities Certificate shall be so
surrendered for exchange or cancellation as provided in this Article V or (ii)
the aggregate Liquidation Amount represented by such Book-Entry Preferred
Securities Certificate shall be reduced, subject to Section 5.2, or increased by
an amount equal to the Liquidation Amount represented by that portion of the
Book-Entry Preferred Securities Certificate to be so exchanged or cancelled, or
equal to the Liquidation Amount represented by such other Preferred Securities
Certificates to be so exchanged for Book-Entry Preferred Securities represented
thereby, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to its records.
Upon surrender to the Administrative Trustees or the Securities Registrar of the
Book-Entry Preferred Securities Certificate or Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. None of
the Securities Registrar or the Issuer Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Issuer Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as Holders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
(d) Every Preferred Securities Certificate executed and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Book-Entry
Preferred Securities Certificate or any portion thereof, whether pursuant to
this Article V or Article IV or otherwise, shall be executed and delivered in
the form of, and shall be, a Book-Entry Preferred Securities Certificate, unless
such Preferred Securities Certificate is registered in the name of a Person
other than the Clearing Agency for such Book-Entry Preferred Securities
Certificate or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a
Book-Entry Preferred Securities Certificate, shall be the Holder of such
Book-Entry Preferred Securities Certificate for all purposes under this Trust
Agreement and the Book-Entry Preferred Securities Certificate, and Owners with
respect to a Book-Entry Preferred Securities Certificate shall hold such
interests pursuant to the Applicable Procedures. The Securities Registrar and
the Issuer Trustees shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Book-Entry Preferred Securities represented thereby and the
giving of instructions or directions by Owners of Book-Entry Preferred
Securities represented thereby) as the sole Holder of the Book-Entry Preferred
Securities represented thereby and shall have no obligations to the Owners
thereof. None of the Property
26
Trustee, the Administrative Trustees nor the Securities Registrar shall have any
liability in respect of any transfers effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Preferred Securities shall be
exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants; provided that,
solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, so long as Definitive Preferred Security Certificates have not
been issued, the Issuer Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy) delivered to
the Issuer Trustees by the Clearing Agency setting forth the Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part. Pursuant to the Certificate Depository Agreement, unless and until
Definitive Preferred Securities Certificates are issued pursuant to Section
5.4(b), the Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants, and none of the Depositor, the
Administrative Trustees or the Issuer Trustees shall have any responsibility or
obligation with respect thereto.
Section 5.5 Registration of Transfer and Exchange of Preferred Securities
Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.9, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and exchanges
of Trust Securities Certificates (the "Securities Register") in which the
registrar and transfer agent with respect to the Trust Securities (the
"Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.11 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The Person
acting as the Property Trustee shall at all times also be the Securities
Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.9, the
Administrative Trustees or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Administrative Trustee or Trustees.
The Securities Registrar shall not be required, (i) to issue, register the
transfer of or exchange any Preferred Security during a period beginning at the
opening of business fifteen days before the day of selection for redemption of
such Preferred Securities pursuant to Article IV and ending at the close of
business on the day of mailing of the notice of redemption, or (ii) to
27
register the transfer of or exchange any Preferred Security so selected for
redemption in whole or in part, except, in the case of any such Preferred
Security to be redeemed in part, any portion thereof not to be redeemed.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or its attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by the
Property Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
(b) Notwithstanding any other provision of this Trust Agreement, transfers
and exchanges of Preferred Securities Certificates and beneficial interests in a
Book-Entry Preferred Securities Certificate of the kinds specified in this
Section 5.5(b) shall be made only in accordance with this Section 5.5(b).
(i) Non-Book-Entry Preferred Securities Certificate to Book-Entry
Preferred Securities Certificate. If the Holder of a Preferred Securities
Certificate (other than a Book-Entry Preferred Securities Certificate)
wishes at any time to transfer all or any portion of such Preferred
Securities Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Book-Entry Preferred Securities
Certificate, such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) and subject to the Applicable Procedures.
Upon receipt by the Securities Registrar of (A) such Preferred Securities
Certificate as provided in Section 5.5(a) and instructions satisfactory to
the Securities Registrar directing that a beneficial interest in the
Book-Entry Preferred Securities Certificate of a specified number of
Preferred Securities not greater than the number of Preferred Securities
represented by such Preferred Securities Certificate be credited to a
specified Clearing Agency Participant's account, then the Securities
Registrar shall cancel such Preferred Securities Certificate (and issue a
new Preferred Securities Certificate in respect of any untransferred
portion thereof) as provided in Section 5.5(a) and increase the aggregate
Liquidation Amount of the Book-Entry Preferred Securities Certificate by
the Liquidation Amount represented by such Preferred Securities so
transferred as provided in Section 5.4(c).
(ii) Non-Book-Entry Preferred Securities Certificate to Non-Book-Entry
Preferred Securities Certificate. A Preferred Securities Certificate that
is not a Book-Entry Preferred Securities Certificate may be transferred, in
whole or in part, to a Person
28
who takes delivery in the form of another Preferred Securities Certificate
that is not a Book-Entry Preferred Securities Certificate as provided in
Section 5.5(a).
(iii) Exchanges between Book-Entry Preferred Securities Certificate
and Non-Book-Entry Preferred Securities Certificate. A beneficial interest
in a Book-Entry Preferred Securities Certificate may be exchanged for a
Preferred Securities Certificate that is not a Book-Entry Preferred
Securities Certificate as provided in Section 5.4.
Section 5.6 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate, and (b) there shall be delivered to the Securities Registrar and
the Administrative Trustees such security or indemnity as may be required by
them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a protected purchaser,
the Administrative Trustees, or any one of them, on behalf of the Issuer Trust
shall execute and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.6, the Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Issuer Trust
corresponding to that evidenced by the lost, stolen or destroyed Trust
Securities Certificate, as if originally issued, whether or not the lost, stolen
or destroyed Trust Securities Certificate shall be found at any time.
Section 5.7 Persons Deemed Holders.
The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
none of the Issuer Trustees and the Securities Registrar shall be bound by any
notice to the contrary.
Section 5.8 Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Delaware Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
29
Section 5.9 Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Administrative Trustees initially designate Bank
One Trust Company, National Association, 0 Xxxx Xxx Xxxxx, Xxxxx ____, Xxxxxxx,
Xxxxxxxx 00000, Attention: _________________, as its office and agency for such
purposes. The Property Trustee shall give prompt written notice to the
Depositor, the Administrative Trustees and to the Holders of any change in the
location of the Securities Register or any such office or agency.
Section 5.10 Appointment of Paying Agent.
The Paying Agent shall make Distributions to the Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent in their sole
discretion. The Paying Agent shall initially be the Bank. Any Person acting as
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Administrative Trustees and the Property Trustee. If the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor (which shall be a bank or trust company) to act as Paying Agent. Such
successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees shall execute and deliver to the Issuer Trustees an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Issuer Trustees that, as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Holders entitled thereto
until such sums shall be paid to such Holders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Bank also in its role as Paying Agent, for so long as the Bank shall act as
Paying Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Trust Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.11 Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Common Securities. The Depositor
may not transfer the Common Securities except (i) in connection with a
consolidation or merger of the Depositor into another Person, or any conveyance,
transfer or lease by the Depositor of its properties and assets
30
substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, or (ii) to the Depositor or an Affiliate thereof in compliance with
applicable law (including the Securities Act and applicable state securities and
blue sky laws), and in either case only upon an effective assignment and
delegation by the Holder of all the Common Securities to its transferee of all
of its rights and obligations under the Expense Agreement. To the fullest extent
permitted by law, any attempted transfer of the Common Securities other than as
set forth in the next preceding sentence shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to the Depositor
to contain a legend stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT
AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT OF THE
EXPENSE AGREEMENT REFERRED TO THEREIN."
Section 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Book-Entry Preferred Securities Certificate, the Issuer
Trustees shall give all such notices and communications specified herein to be
given to the Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Rights of Holders; Waivers of Past Defaults.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer Trust conferred by their Trust
Securities, and they shall have no right to call for any partition or division
of property, profits or rights of the Issuer Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Holders against payment of the purchase price therefor will be fully paid and
nonassessable by the Issuer Trust. Subject to the provisions of Section 4.8, the
Holders of the Trust Securities, in their capacities as such, shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon
an Indenture Event of Default, the Indenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debt Securities fail to
declare the principal of all of the Debt Securities to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have the right to make such declaration by a
notice in writing to the Property Trustee, the Depositor and the Indenture
Trustee.
At any time after a declaration of acceleration with respect to the Debt
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by
31
the Indenture Trustee as in the Indenture provided, if the Property Trustee
fails to annul any such declaration and waive such default, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities, by written
notice to the Property Trustee, the Depositor and the Indenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Indenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all of the Debt
Securities,
(B) any accrued Additional Interest on all of the Debt
Securities,
(C) the principal of (and premium, if any, on) any Debt
Securities that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debt
Securities, and
(D) all sums paid or advanced by the Indenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the Debt Securities, other
than the non-payment of the principal of the Debt Securities that has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Indenture Trustee) or a default in
respect of a covenant or provision that under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debt Security.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Preferred Securities, a record date shall be established for determining Holders
of Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is 90 days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be,
32
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon an Indenture Event of Default specified in Section
5.1(1) or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have
the right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of any
amounts payable in respect of Debt Securities having an aggregate principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such Holder (a "Direct Action"). Except as set forth in Section 5.13(b) and this
Section 5.13(c), the Holders of Preferred Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect
of, the Debt Securities.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising 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 Event of Default or impair any
right consequent thereon.
ARTICLE VI
Acts of Holders; Meetings; Voting
Section 6.1 Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Issuer Trust or the obligations
of the parties hereto, nor shall anything herein set forth, or contained in the
terms of the Trust Securities Certificates, be construed so as to constitute the
Holders from time to time as partners or members of an association.
(b) So long as any Debt Securities are held by the Property Trustee on
behalf of the Issuer Trust, the Property Trustee shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or execute any trust or power conferred on the Indenture
Trustee with respect to the Debt Securities, (ii) waive any past default that
may be waived under Section 5.13 of the Indenture, (iii) exercise any right to
rescind or
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annul a declaration that the principal of all the Debt Securities shall be due
and payable, or (iv) consent to any amendment, modification or termination of
the Indenture or the Debt Securities, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities, provided, however,
that where a consent under the Indenture would require the consent of each
holder of Debt Securities affected thereby, no such consent shall be given by
the Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities, except by a subsequent vote of the Holders of the Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received with respect to the Debt
Securities. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Property Trustee shall, at the expense of the Depositor, obtain an Opinion of
Counsel experienced in such matters to the effect that such action shall not
cause the Issuer Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes.
(c) If any proposed amendment to this Trust Agreement provides for, or the
Issuer Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding up or termination of the Issuer
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Issuer Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States federal income tax purposes.
Section 6.2 Notice of Meetings.
Notice of all meetings of the Holders of the Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities, at such
Holder's registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
Section 6.3 Meetings of Holders of the Preferred Securities.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of the Holders of the Preferred Securities to vote
on any matter upon the
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written request of the Holders of at least 25% in aggregate Liquidation Amount
of the Outstanding Preferred Securities, and the Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a meeting of the
Holders of the Preferred Securities to vote on any matters as to which such
Holders are entitled to vote.
The Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Preferred Securities representing at
least a majority in aggregate Liquidation Amount of the Preferred Securities
held by the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of the Preferred Securities, unless this
Trust Agreement requires a greater number of affirmative votes.
Section 6.4 Voting Rights.
Holders shall be entitled to one vote for each $25 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
Section 6.5 Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Property Trustee, or with such other officer or
agent of the Issuer Trust as the Property Trustee may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution of
the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Holders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them shall be present
at such meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Trust Securities. A proxy purporting to be executed by or on
behalf of a Holder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.6 Holder Action by Written Consent.
Any action that may be taken by the Holders at a meeting may be taken
without a meeting and without prior notice if Holders holding at least a
Majority in Liquidation Amount of the Preferred Securities entitled to vote in
respect of such action (or such larger proportion
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thereof as shall be required by any other provision of this Trust Agreement)
shall consent to the action in writing.
Section 6.7 Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees or the Property Trustee may from time to
time fix a date, not more than 90 days prior to the date of any meeting of
Holders or the payment of a distribution or other action, as the case may be, as
a record date for the determination of the identity of the Holders of record for
such purposes.
Section 6.8 Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to the Property Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Trust Agreement and (subject to Section 8.1) conclusive
in favor of the Issuer Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner that any Issuer Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Issuer Trustees
or the Issuer Trust in reliance thereon, whether or not notation of such action
is made upon such Trust Security.
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Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents, each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders or the Issuer Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Holder or Issuer
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
Representations and Warranties
Section 7.1 Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a national banking association, duly
organized, validly existing and in good standing under the laws of the United
States;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation that satisfies for the
Trust the requirements of Section 3807 of the Delaware Statutory Trust Act;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
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(e) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement have
been duly authorized by all necessary corporate or other action on the part of
the Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee or the Delaware Trustee and such execution,
delivery and performance will not (i) violate the charter or by-laws of the
Property Trustee or the Delaware Trustee, (ii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of, any Lien on any properties included in the
Trust Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing law of
the United States or the State of Delaware governing the banking, trust or
general powers of the Property Trustee or the Delaware Trustee, as the case may
be; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Issuer Trust or would question the right, power and authority of the Property
Trustee or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Issuer Trustees under this Trust Agreement.
Section 7.2 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the Trust Securities Certificates issued at each Time of Delivery on
behalf of the Issuer Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Issuer Trustees pursuant to the
terms and provisions of, and in accordance with
38
the requirements of, this Trust Agreement, and the Holders will be, as of each
such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under the
laws of the State of Delaware or any political subdivision thereof in connection
with the execution, delivery and performance by any Issuer Trustee of this Trust
Agreement.
ARTICLE VIII
The Issuer Trustees
Section 8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require any of the Issuer Trustees to expend or risk its
or their own funds or otherwise incur any financial liability in the performance
of any of its or their duties hereunder, or in the exercise of any of its or
their rights or powers, if it or they shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Issuer Trustees shall
be subject to the provisions of this Section 8.1. Nothing in this Trust
Agreement shall be construed to release an Administrative Trustee from liability
for such Person's own grossly negligent action, such Person's own grossly
negligent failure to act, or such Person's own willful misconduct. To the extent
that, at law or in equity, an Issuer Trustee has duties and liabilities relating
to the Issuer Trust or to the Holders, such Issuer Trustee shall not be liable
to the Issuer Trust or to any Holder for such Issuer Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Issuer Trustees otherwise existing at law or in equity, are agreed by the
Depositor and the Holders to replace such other duties and liabilities of the
Issuer Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Issuer Trustees are not
personally liable to such Holder for any amount distributable in respect of any
Trust Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set
39
forth elsewhere in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the Property
Trustee shall enforce this Trust Agreement for the benefit of the Holders.
(d) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement (including pursuant to Section 10.10), and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. If an
Event of Default has occurred (that has not been cured or waived pursuant to
Section 5.13), the Property Trustee shall exercise such of the rights and powers
vested in it by this Trust Agreement, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(e) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee or the Delaware Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Trust Agreement
(including pursuant to Section 10.10), and the Property Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust Agreement
(including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement;
but in the case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are specifically
required to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of
40
at least a Majority in Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debt Securities and the
Payment Account shall be to deal with such Property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;
(vi) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Issuer Trustee
or the Depositor; and
(vii) no provision of this Trust Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Property Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Trust
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
(f) The Administrative Trustees shall not be responsible for monitoring
the compliance by the other Issuer Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall any Administrative
Trustee be liable for the default or misconduct of any other Administrative
Trustee, the other Issuer Trustees or the Depositor.
Section 8.2 Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Holders and the Administrative Trustees, unless such Event of
Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debt Securities
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice
41
of such exercise to the Holders and the Administrative Trustees, unless such
exercise shall have been revoked.
The Property Trustee shall not be deemed to have knowledge of any Event of
Default unless the Property Trustee shall have received written notice or a
Responsible Officer of the Property Trustee charged with the administration of
this Trust Agreement shall have obtained actual knowledge of such Event of
Default.
Section 8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein, or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Holders of the Preferred Securities are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting the Depositor's opinion as to the course of action to be
taken, and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(d) any direction or act of an Administrative Trustee contemplated by this
Trust Agreement shall be sufficiently evidenced by a certificate executed by
such Administrative Trustee and setting forth such direction or act;
42
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Holders pursuant to this Trust Agreement, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred by
it in compliance with such request or direction; provided that nothing contained
in this Section 8.3(g) shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Trust Agreement;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall be responsible for its own
negligence or misconduct with respect to selection of any agent or attorney
appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders (which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
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No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to any Issuer Trustee shall be construed to be a duty.
Section 8.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust and the Depositor, and the
Issuer Trustees do not assume any responsibility for their correctness. The
Issuer Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Debt Securities.
Section 8.5 May Hold Securities.
Any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and except as
provided in the definition of the term "Outstanding" in Article I, may otherwise
deal with the Issuer Trust with the same rights it would have if it were not an
Issuer Trustee or such other agent.
Section 8.6 Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Issuer Trustees from time to time such reasonable
compensation for all services rendered by them hereunder as may be agreed by the
Depositor and the Issuer Trustees from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Issuer Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Issuer Trustees in accordance with any
provision of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of their agents and counsel), except any such
expense, disbursement or advance as may be attributable to their negligence (or,
in the case of the Administrative Trustees, gross negligence), bad faith or
willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Issuer Trustee, (ii) any Affiliate of any Issuer
Trustee, (iii) any officer, director, shareholder, employee, representative or
agent of any Issuer Trustee, and (iv) any employee or agent of the Issuer Trust
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or dissolution of the Issuer Trust
44
or any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Issuer Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence (or, in the case of
the Administrative Trustees, gross negligence), bad faith or willful misconduct
with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of
this Trust Agreement and the removal or resignation of any Issuer Trustee.
No Issuer Trustee may claim any Lien on any Trust Property as a result
of any amount due pursuant to this Section 8.6.
The Depositor and any Issuer Trustee (subject to Section 8.8) may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Issuer Trust, and the Issuer Trust and the Holders of Trust Securities
shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Issuer Trust,
shall not be deemed wrongful or improper. Neither the Depositor nor any Issuer
Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor or any Issuer Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Issuer Trustee may engage or be
interested in any financial or other transaction with the Depositor or any
Affiliate of the Depositor, or may act as depositary for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations
of the Depositor or its Affiliates.
Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer
Trustees and Administrative Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and that has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section 8.7 and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section 8.7, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article VIII. At the
time of appointment, the Property Trustee must
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have securities rated in one of the three highest rating categories by a
nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware, or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law and that shall
act through one or more persons authorized to bind such entity.
Section 8.8 Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Trust Agreement.
(b) The Guarantee and the Indenture shall be deemed to be specifically
described in this Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
Section 8.9 Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Holder of the Common Securities and the
Administrative Trustees, shall have the power to appoint one or more Persons
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. Any co-trustee or
separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States, or (ii) a legal entity with its principal place of business in the
United States that shall act through one or more persons authorized to bind such
entity. In case an Indenture Event of Default shall have occurred and be
continuing, the Property Trustee alone shall have the power to make such
appointment.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such
46
property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more
Administrative Trustees, and the Trust Securities shall be delivered by the
Property Trustee, and all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Property Trustee specified
hereunder shall be exercised solely by the Property Trustee and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case an Indenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigning or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
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Section 8.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders of Common
Securities, unless an Indenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by Act of the Holders
of Common Securities. If an Indenture Event of Default shall have occurred and
be continuing, the Property Trustee or the Delaware Trustee, or both of them,
may be removed at such time by Act of the Holders of a Majority in Liquidation
Amount of the Preferred Securities, delivered to the retiring Relevant Trustee
(in its individual capacity and on behalf of the Trust). An Administrative
Trustee may be removed by the Holders of Common Securities at any time.
If any Issuer Trustee shall resign, be removed or become incapable of
acting as an Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any cause, at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holders of Common Securities, by Act of the
Holders of Common Securities delivered to the retiring Issuer Trustee, shall
promptly appoint a successor Issuer Trustee or Issuer Trustees, and the retiring
Issuer Trustee shall comply with the applicable requirements of Section 8.11. If
the Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when an Indenture Event of Default shall have
occurred and be continuing, the Holders of Preferred Securities, by Act of the
Holders of a Majority in Liquidation Amount of the Preferred Securities
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees, and such successor Trustee shall comply with the
applicable requirements of Section 8.11. If an Administrative Trustee shall
resign, be removed or become incapable of acting as an Administrative Trustee,
at a time when an Indenture Event of Default shall have occurred and be
continuing, the Holders of Common Securities by Act of the Holders of Common
Securities delivered to the Administrative Trustee shall promptly appoint a
successor Administrative Trustee or Administrative Trustees, and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Holders of Common Securities or the Holders of Preferred Securities and
accepted appointment in the manner required by Section 8.11, any Holder who has
been a Holder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of the Property Trustee or the Delaware Trustee and each appointment of
a successor Relevant Trustee
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to all Holders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there were at least two of them prior to such vacancy or (b) otherwise by the
Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in Section 8.7).
Section 8.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee (if requested by the Depositor) and each successor
Relevant Trustee with respect to the Trust Securities shall execute and deliver
an amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Issuer Trust, and (b) shall
add to or change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the Issuer Trust by
more than one Relevant Trustee, it being understood that nothing herein or in
such amendment shall constitute such Relevant Trustees co-trustees, and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Issuer Trust or any
successor Relevant Trustee, such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Trust Securities and the Issuer Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
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Section 8.12 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 may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided that such Person shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or
Issuer Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Issuer Trust (or any other obligor upon the Preferred
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Issuer Trust (or any such other obligor).
Section 8.14 Property Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable and irrespective of whether
the Property Trustee shall have made any demand on the Issuer Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the
fullest extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
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Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.15 Reports by Property Trustee.
(a) Not later than July 15 of each year commencing with July 15, ___,
the Property Trustee shall transmit to all Holders in accordance with Section
10.8, and to the Depositor, a brief report dated as of the immediately preceding
May 15 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all
of its obligations under this Trust Agreement during the twelve-month
period (or, in the case of the initial report, the period since the
Closing Date) ending with such May 15 or, if the Property Trustee has
not complied in any material respect with such obligations, a
description of such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken
by the Property Trustee in the performance of its duties hereunder
which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to Holders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with the Depositor.
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Section 8.16 Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees shall provide to
the Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act. The
Depositor and the Administrative Trustees shall annually file with the Property
Trustee a certificate specifying whether such Person is in compliance with all
of the terms and covenants applicable to such Person hereunder.
Section 8.17 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees shall provide to
the Property Trustee such evidence of compliance with any conditions precedent,
if any, provided for in this Trust Agreement that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) of the
Trust Indenture Act shall be given in the form of an Officers' Certificate.
Section 8.18 Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be four, unless the Property
Trustee also acts as the Delaware Trustee, in which case the number of Issuer
Trustees may be three.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul, dissolve or terminate the Issuer Trust.
Section 8.19 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
such Person's power for the purpose of executing any documents contemplated in
Section 2.7(a), including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Issuer Trust or the
names of the Administrative Trustees or otherwise as the Administrative Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement.
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Section 8.20 Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be Xxxxx X. Xxxxxxxxx, an
individual, and Xxxxxx Xxxxxxxxxxx, an individual. Their successors shall be
appointed by the Holders of a Majority in Liquidation Amount of the Common
Securities and they may resign or be removed by the Holders of a Majority in
Liquidation Amount of the Common Securities at any time.
(b) Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an Administrative
Trustee in accordance with this Section 8.20, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Trust Agreement), shall have all the powers granted to the Administrative
Trustees and shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
ARTICLE IX
Dissolution, Liquidation and Merger
Section 9.1 Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically dissolve,
and its affairs shall be wound up on __________, 2058 (the "Expiration Date"),
following the distribution of the Trust Property in accordance with Section 9.4.
Section 9.2 Early Dissolution.
The first to occur of any of the following events is an "Early
Dissolution Event," upon the occurrence of which the Issuer Trust shall be
dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the Holder of
the Common Securities, unless the Depositor shall transfer the Common Securities
as provided by Section 5.11, in which case this provision shall refer instead to
any such successor Holder of the Common Securities;
(b) the written direction to the Property Trustee from all of the Holders
of the Common Securities at any time to dissolve the Issuer Trust and to
distribute the Debt Securities to Holders in exchange for the Preferred
Securities (which direction is optional and wholly within the discretion of the
Holders of the Common Securities);
(c) the redemption of all of the Preferred Securities in connection with
the redemption of all the Debt Securities; and
(d) the entry of an order for dissolution of the Issuer Trust by a court
of competent jurisdiction.
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Section 9.3 Dissolution.
The respective obligations and responsibilities of the Issuer Trustees
and the Issuer Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property Trustee
to the Holders of all amounts required to be distributed hereunder upon the
liquidation of the Issuer Trust pursuant to Section 9.4, or upon the redemption
of all of the Trust Securities pursuant to Section 4.2; (b) the payment of any
expenses owed by the Issuer Trust; and (c) the discharge of all administrative
duties of the Administrative Trustees, including the performance of any tax
reporting obligations with respect to the Issuer Trust or the Holders.
Section 9.4 Liquidation.
(a) If an Early Dissolution Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, to each Holder a
Like Amount of Debt Securities, subject to Section 9.4(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid
mailed not less than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities at such Holder's address appearing in the
Securities Register. All such notices of liquidation shall:
(i) State the CUSIP Number of the Preferred Securities;
(ii) state the Liquidation Date;
(iii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debt Securities; and
(iv) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debt Securities,
or if Section 9.4(d) applies receive a Liquidation Distribution, as the
Property Trustee (in consultation with the Administrative Trustees) shall
deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
winding up of the Issuer Trust and distribution of the Debt Securities to
Holders, the Property Trustee, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish a record date for
such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and establish such procedures as it shall deem appropriate to effect the
distribution of Debt Securities in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like
54
Amount of Debt Securities will be issued to Holders of Trust Securities
Certificates, upon surrender of such Certificates to the exchange agent for
exchange, (iii) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Debt Securities bearing
accrued and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Trust Securities Certificates until such certificates are
so surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debt Securities) and (iv) all rights of Holders holding
Trust Securities will cease, except the right of such Holders to receive Debt
Securities upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Debt Securities in the manner provided herein
is determined by the Property Trustee not to be practical, the Trust Property
shall be liquidated, and the Issuer Trust shall be wound up, by the Property
Trustee in such manner as the Property Trustee determines. In such event, the
Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to the Holders, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by applicable law, an amount equal to
the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such winding up, the Liquidation Distribution can
be paid only in part because the Issuer Trust has insufficient assets available
to pay in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Issuer Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holders of the Common Securities will be entitled to receive Liquidation
Distributions upon any such winding up pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if an Indenture Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities as provided in Section 4.3.
Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of
Issuer Trust.
The Issuer Trust may not merge, consolidate or amalgamate with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5 or as otherwise set forth in this Trust Agreement. At the
request of the Holders of the Common Securities, the Issuer Trust may merge,
consolidate or amalgamate with or into, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Issuer Trust
with respect to the Preferred Securities, or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor Securities have
the same priority as the Preferred Securities with respect to distributions and
payments upon liquidation, redemption and otherwise, (ii) a trustee of such
successor entity possessing the same powers and
55
duties as the Property Trustee is appointed to hold the Debt Securities, (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization which assigns ratings to the Preferred Securities, (iv) the
Successor Securities are listed, or any Successor Securities will be listed upon
notice of issuance, on any national securities exchange, automated quotation
system or other organization on which the Preferred Securities are then listed,
if any, (v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
substantially identical to that of the Issuer Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Property Trustee has received an Opinion of Counsel to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an "investment company" under
the Investment Company Act, and (viii) the Depositor or its permitted transferee
owns all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, the Issuer
Trust shall not, except with the consent of Holders of all of the Preferred
Securities, consolidate, amalgamate or merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate or
merge with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer Trust or the
successor entity to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
Section 10.1 Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, incapacity, bankruptcy,
dissolution or termination of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor dissolve, amend or terminate the Issuer Trust, nor entitle the
legal representatives or heirs of such Person or any Holder for such Person, to
claim an accounting, take any action or bring any proceeding in any court for a
partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
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Section 10.2 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Holders of all of the Common Securities, without
the consent of any Holder of the Preferred Securities, (i) to cure any
ambiguity, to correct or supplement any provision herein that may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Issuer Trust will not be
taxable as a corporation or classified as other than a grantor trust for United
States federal income tax purposes at all times that any Trust Securities are
Outstanding or to ensure that the Issuer Trust will not be required to register
as an "investment company" under the Investment Company Act; provided, however,
that in the case of either clause (i) or clause (ii), such action shall not
adversely affect in any material respect the interests of any Holder.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Administrative Trustees and the Holders of
all of the Common Securities and with (i) the consent of Holders of at least a
Majority in Liquidation Amount of the Preferred Securities, and (ii) receipt by
the Administrative Trustees and the Holders of all of the Common Securities of
an Opinion of Counsel to the effect that such amendment or the exercise of any
power granted to the Issuer Trustees in accordance with such amendment will not
cause the Issuer Trust to be taxable as a corporation or as other than a grantor
trust for United States federal income tax purposes or affect the Issuer Trust's
exemption from status as an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Holder, this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date,
or (ii) restrict the right of a Holder to institute suit for the enforcement of
any such payment on or after such date; and notwithstanding any other provision
herein, without the unanimous consent of the Holders, this paragraph (c) of this
Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, the
Administrative Trustees and the Holders of all the Common Securities shall not
enter into or consent to any amendment to this Trust Agreement that would cause
the Issuer Trust to fail or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act or to be taxable as a
corporation or to be classified as other than a grantor trust for United States
federal income tax purposes.
57
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this Trust
Agreement may not be amended in a manner that imposes any additional obligation
on the Depositor or the Administrative Trustees.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) No amendment to this Trust Agreement that affects the Property
Trustee's or the Delaware Trustee's own rights, duties or immunities under this
Trust Agreement may be made without the consent of the Property Trustee or the
Delaware Trustee, as the case may be. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement.
Section 10.3 Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.4 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR AND THE ISSUER TRUSTEES WITH RESPECT TO
THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS PROVISIONS.
Section 10.5 Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no Distributions
shall accumulate on such unpaid amount for the period after such date.
Section 10.6 Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer Trust and any Issuer Trustee,
including any successor by operation of law. The Depositor shall not assign its
rights or obligations hereunder, except in connection with (i) a consolidation,
merger, sale or other transaction involving the Depositor that
58
is permitted under Article VIII of the Indenture or (ii) the transfer of the
Common Securities to an Affiliate of the Depositor in compliance with applicable
law (including the Securities Act and applicable state securities and blue sky
laws) and, in either case, only upon an effective assignment and delegation by
the Depositor to such transferee of all its rights and obligations hereunder,
including the Expense Agreement,.
Section 10.7 Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8 Reports, Notices and Demands.
Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Preferred Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of the
Common Securities or the Depositor, to Northern Trust Corporation, Fifty Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Secretary, facsimile no.:
(000) 000-0000, or to such other address as may be specified in a written notice
by the Holder of the Common Securities or the Depositor, as the case may be, to
the Property Trustee. Such notice, demand or other communication to or upon a
Holder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission. Such notice, demand or
other communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Depositor.
Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Property Trustee, the Delaware Trustee, the Administrative Trustees or the
Issuer Trust shall be given in writing addressed to such Person as follows: (a)
with respect to the Property Trustee to Bank One Trust Company, National
Association, 0 Xxxx Xxx Xxxxx, Xxxxx ____, Xxxxxxx, Xxxxxxxx 00000, Attention:
_________________; (b) with respect to the Delaware Trustee, to Bank One
Delaware, Inc., Three Christiana Centre, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: _______________; (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of NTC Capital
[III/IV/V]"; and (d) with respect to the Issuer Trust, to its principal office
specified in Section 2.2, with a copy to the Property Trustee. Such notice,
demand or other communication to or upon the Issuer Trust, the Property Trustee
or the Administrative Trustees shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the Issuer Trust, the
Property Trustee or such Administrative Trustee.
59
Section 10.9 Agreement Not to Petition.
Each of the Issuer Trustees and the Depositor agree for the benefit of
the Holders that, until at least one year and one day after the Issuer Trust has
been dissolved in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including the United States
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Issuer Trust under any Bankruptcy
Law. If the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer
Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be stopped
and precluded therefrom and such other defenses, if any, as counsel for the
Issuer Trustee or the Issuer Trust may assert.
Section 10.10 Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Issuer Trustee that is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties
shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to
this Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Issuer
Trust.
Section 10.11 Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY OWNER, WITHOUT ANY SIGNATURE OR FURTHER
MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AND THE
INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND
60
OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE
AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS
BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
Section 10.12 Counterparts.
This Trust Agreement may contain more than one counterpart of the
signature page and may be executed by the affixing of the signature of each of
the Issuer Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
61
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.
Northern Trust Corporation,
as Depositor
By: ______________________________
Name: Xxxxx X. Xxxx
Title: Vice Chairman and Chief
Financial Officer
Bank One Trust Company, National
Association,
as Property Trustee
By: ______________________________
Name:
Title:
Bank One Delaware, Inc.,
as Delaware Trustee
By: ______________________________
Name:
Title:
Administrative Trustees
__________________________________
Name: Xxxxx X. Xxxxxxxxx,
as Administrative Trustee
__________________________________
Name: Xxxxxx Xxxxxxxxxxx,
as Administrative Trustee
62
State of )
) ss.:
County of )
On the ____ day of ___________, before me personally came Xxxxx X.
Xxxx, to me known, who, being by me duly sworn, did depose and say that he is
Vice Chairman and Chief Financial Officer of Northern Trust Corporation, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
____________________________
State of )
) ss.:
County of )
On the ____ day of ___________, before me personally came ____________,
to me known, who, being by me duly sworn, did depose and say that (s)he is a
_____________ of Bank One Trust Company, National Association, one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that (s)he signed his/her name
thereto by like authority.
____________________________
State of )
) ss.:
County of )
On the ____ day of ___________, before me personally came ____________,
to me known, who, being by me duly sworn, did depose and say that (s)he is a
______________ of Bank One Delaware, Inc., one of the corporations described in
and which executed the foregoing instrument; that (s)he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that (s)he signed his/her name thereto by like authority.
____________________________
63
Exhibit A
CERTIFICATE OF TRUST
OF
NTC CAPITAL III
This Certificate of Trust of NTC Capital III (the "Trust"), dated as of
December 27, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (S) 3801 et seq.)
1. Name. The name of the business trust being created hereby is NTC
Capital III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are First Chicago Delaware Inc., 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the
Trust, have executed this Certificate of Trust as of the date first-above
written.
First Chicago Delaware Inc., as trustee
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx, as trustee
A-1
CERTIFICATE OF TRUST
OF
NTC CAPITAL [IV/V]
This Certificate of Trust of NTC Capital [IV/V] (the "Trust"),
dated as of May 19, 2003, is being duly executed and filed by the undersigned,
as trustees, to create a statutory trust under the Delaware Statutory Trust Act
(12 Del. C. (S) 3801 et seq.)
1. Name. The name of the statutory trust being created hereby is NTC
Capital [IV/V].
2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware are Bank One Delaware, Inc., Three Christiana
Centre, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one or
more counterparts.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the
Trust, have executed this Certificate of Trust as of the date first-above
written.
Bank One Delaware, Inc., as Delaware Trustee of the Trust
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Counsel
Bank One Trust Company, National Association,
as Property Trustee of the Trust
By: /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Counsel
/s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx,
Administrative Trustee
A-2
Exhibit B
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT AND ONLY IN
CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT OF THE
EXPENSE AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Common Securities
____ ______
Certificate Evidencing Common Securities
of
NTC Capital [III/IV/V]
Common Securities
(liquidation amount $25 per Common Security)
NTC Capital [III/IV/V], a statutory trust created under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that Northern Trust
Corporation (the "Holder") is the registered owner of common securities of the
Issuer Trust representing undivided beneficial interests in the assets of the
Issuer Trust and designated the Common Securities (liquidation amount $25 per
Common Security) (the "Common Securities"). Except in accordance with Section
5.11 of the Trust Agreement (as defined below) the Common Securities are not
transferable and, to the fullest extent permitted by law, any attempted transfer
hereof other than in accordance therewith shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of __________, as the same may be amended from time to
time (the "Trust Agreement"), among Northern Trust Corporation, as Depositor,
Bank One Trust Company, National Association, as Property Trustee, Bank One
Delaware, Inc., as Delaware Trustee, the Administrative Trustees named therein
and the holders, from time to time, of undivided beneficial interests in the
assets of the Issuer Trust, including the designation of the terms of the Common
Securities as set forth therein. The Issuer Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Issuer
Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
B-1
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
B-2
In Witness Whereof, the Issuer Trust has executed this certificate this
_____ day of __________.
NTC Capital [III/IV/V]
By: __________________________________
Name: Xxxxx X. Xxxxxxxxx
Title: Administrative Trustee
B-3
Exhibit C
[FORM OF EXPENSE AGREEMENT]
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement as to Expenses and Liabilities, dated as of __________, between
Northern Trust Corporation, a Delaware corporation (the "Corporation"), and NTC
Capital [III/IV/V], a Delaware statutory trust (the "Issuer Trust").
Whereas, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire Debt Securities from the Corporation and to
issue and sell Preferred Securities (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Issuer Trust, dated as of
__________, among the Corporation, as Depositor, Bank One Trust Company,
National Association, as Property Trustee, Bank One Delaware, Inc., as Delaware
Trustee, the Administrative Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the assets of the Issuer Trust, as
the same may be amended from time to time (the "Trust Agreement");
Whereas, the Corporation will own all of the Common Securities of the
Issuer Trust and will issue the Debt Securities;
Whereas, capitalized terms used but not defined herein have the meanings
set forth in the Trust Agreement;
Now, Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
Section 1.1. Guarantee by the Corporation. Subject to the terms and
conditions hereof, the Corporation hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any costs, expenses or liabilities of the
Issuer Trust, other than obligations of the Issuer Trust to pay to holders of
any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
Section 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Corporation under this Agreement shall
constitute unsecured obligations of the Corporation and shall rank subordinate
and junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Corporation to the extent and in the manner set forth in the
C-1
Indenture with respect to the Debt Securities, and the provisions of Article
XIII of the Indenture will apply, mutatis mutandis, to the obligations of the
Corporation hereunder. The obligations of the Corporation hereunder do not
constitute Senior Indebtedness (as defined in the Indenture) of the Corporation.
Section 1.3. Term of Agreement. This Agreement shall terminate and be of no
further force and effect upon the dissolution of the Issuer Trust, provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Preferred
Securities or any Beneficiary must restore payment of any sums paid under the
Preferred Securities, under any Obligation, under the Guarantee Agreement dated
the date hereof by the Depositor and Bank One Trust Company, National
Association, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.4. Waiver of Notice. The Corporation hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.5. No Impairment. The obligations, covenants, agreements and
duties of the Corporation under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Issuer Trust of all or
any portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Issuer Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer Trust or any of the assets of
the Issuer Trust (other than the dissolution of the Issuer Trust in accordance
with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Corporation with respect to the happening of any of the
foregoing.
Section 1.6. Enforcement. A Beneficiary may enforce this Agreement directly
against the Corporation, and the Corporation waives any right or remedy to
require that any action be
C-2
brought against the Issuer Trust or any other person or entity before proceeding
against the Corporation.
Section 1.7. Subrogation. The Corporation shall be subrogated to all rights
(if any) of the Issuer Trust in respect of any amounts paid to the Beneficiaries
by the Corporation under this Agreement; provided, however, that the Corporation
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Agreement, if, at the time of any such payment,
any amounts are due and unpaid under this Agreement.
ARTICLE II
Section 2.1. Assignment. This Agreement may not be assigned by either party
hereto without the consent of the other, and any purported assignment without
such consent shall be void; provided, however, that, upon any transfer of the
Common Securities, this Agreement shall be assigned and delegated by the
Corporation to its successor with such transfer without any action by either
party hereto.
Section 2.2. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
Section 2.3. Amendment. So long as there remains any Beneficiary or any
Preferred Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Preferred Securities without the consent of such Beneficiary or the holders of
the Preferred Securities, as the case may be.
Section 2.4. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so given,
shall be deemed given when mailed or upon receipt of an answer-back, if sent by
telex):
NTC Capital [III/IV/V]
c/o Bank One Trust Company, National Association
0 Xxxx Xxx Xxxxx, Xxxxx ____
Xxxxxxx, Xxxxxxxx 00000
Attention: ________________________
C-3
With a copy to:
Northern Trust Corporation
Fifty Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: Secretary
Section 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES.
C-4
This Agreement is executed as of the day and year first above written.
Northern Trust Corporation
By: __________________________________
Name: Xxxxx X. Xxxx
Title: Vice Chairman
and Chief Financial Officer
NTC Capital [III/IV/V]
By: __________________________________
Name: Xxxxx X. Xxxxxxxxx
Administrative Trustee
C-5
Exhibit D
[FORM OF PREFERRED SECURITIES CERTIFICATE]
[If the Preferred Securities Certificate is to be Evidenced by a
Book-Entry Preferred Securities Certificate, insert--This Preferred Securities
Certificate is a Book-Entry Preferred Securities Certificate within the meaning
of the Trust Agreement hereinafter referred to and is registered in the name of
a Depositary or a nominee of a Depositary. This Preferred Securities Certificate
is exchangeable for Preferred Securities Certificates registered in the name of
a person other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and may not be transferred except
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, except in
the limited circumstances described in the Trust Agreement.
Unless this Preferred Securities Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to NTC Capital [III/IV/V] or its agent for registration of transfer, exchange or
payment, and any Preferred Securities Certificate issued is registered in the
name of Cede & Co. or such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number Number of Preferred Securities
______ ______
CUSIP NO. __________
Certificate Evidencing Preferred Securities
of
NTC Capital [III/IV/V]
Preferred Securities
(liquidation amount $25 per Preferred Security)
NTC Capital [III/IV/V], a statutory trust created under the laws of the
State of Delaware (the "Issuer Trust"), hereby certifies that [Cede & Co.] (the
"Holder") is the registered owner of Preferred Securities of the Issuer Trust
representing an undivided beneficial interest in the assets of the Issuer Trust
and designated the NTC Capital [III/IV/V] Preferred Securities (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Issuer Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.5 of the Trust
Agreement (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of __________, as the same may be amended from
time to time (the "Trust Agreement"), among Northern Trust Corporation, as
Depositor, Bank One Trust Company, National Association, as Property Trustee,
Bank One Delaware, Inc., as Delaware Trustee, the Administrative Trustees named
therein and the holders, from time to time, of undivided beneficial interests in
the assets of the Issuer Trust, including the designation of the terms of the
Preferred Securities as set forth therein. The Holder is entitled to the
benefits of the Guarantee Agreement entered into by Northern Trust Corporation,
a Delaware corporation, and Bank One Trust Company, National Association, as
guarantee trustee, dated as of __________, as the same may be amended from time
to time (the "Guarantee"), to the extent provided therein. The Issuer Trust will
furnish a copy of the Issuer Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Issuer Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
D-2
In Witness Whereof, the Issuer Trust has executed this certificate this
____ of __________.
NTC Capital [III/IV/V]
By: ________________________________
Name: Xxxxx X. Xxxxxxxxx
Administrative Trustee
D-3
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Preferred
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________________________________
agent to transfer this Preferred Securities Certificate on the books of the
Issuer Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: _____________________________________________________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
D-4
