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AMENDED AND RESTATED
DECLARATION OF TRUST AND
TRUST AGREEMENT
among
WILLAMETTE INDUSTRIES, INC., as Depositor,
[-----------------------------------------------,]
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of ------------------, 1997
WILLAMETTE CAPITAL II
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WILLAMETTE CAPITAL II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Section Trust Agreement Section
310 (a)(1)..............................................................8.7
(a)(2)..............................................................8.7
(a)(3)..............................................................8.9
(a)(4)................................................... 2.7(a)(ii)(E)
(b).................................................................8.8
311 (a)..................................................... Not Applicable
(b)......................................................Not Applicable
312 (a)......................................................Not Applicable
(b)......................................................Not Applicable
(c).................................................................5.7
313 (a).........................................................8.14(a),(b)
(a)(4)......................................................... 8.14(b)
(b)......................................................Not Applicable
(c)................................................................10.8
(d).............................................................8.14(c)
314 (a)................................................................8.15
(b)..................................................... Not Applicable
(c)(1).............................................................8.16
(c)(2).............................................................8.16
(c)(3)...................................................Not Applicable
(d)......................................................Not Applicable
(e)...........................................................1.1, 8.16
315 (a)..................................................... 8.1(a), 8.3(a)
(b)...........................................................8.2, 10.8
(c)..............................................................8.1(a)
(d)............................................................8.1, 8.3
(e)......................................................Not Applicable
316 (a)(1)(A)............................................... Not Applicable
(a)(1)(B)..........................................................5.13
(a)(2)...................................................Not Applicable
(b)................................................................5.14
(c).................................................................6.7
317 (a)(1)...................................................Not Applicable
(a)(2).............................................................8.13
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
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TABLE OF CONTENTS
ARTICLE I. DEFINED TERMS........................................................................ 2
SECTION 1.1 Definitions................................................................. 2
ARTICLE II. CONTINUATION OF THE TRUST............................................................ 10
SECTION 2.1 Name........................................................................ 10
SECTION 2.2 Office of the Delaware Trustee; Principal Place of
Business.................................................................... 10
SECTION 2.3 Initial Contribution of Trust Property; Organizational
Expenses.................................................................... 11
SECTION 2.4 Issuance of the Preferred Securities........................................ 11
SECTION 2.5 Issuance of the Common Securities; Subscription and
Purchase of Subordinated Debt Securities.................................... 11
SECTION 2.6 Declaration of Trust........................................................ 12
SECTION 2.7 Authorization to Enter into Certain Transactions............................ 12
SECTION 2.8 Assets of Trust............................................................. 16
SECTION 2.9 Title to Trust Property..................................................... 16
ARTICLE III. PAYMENT ACCOUNT............................................................................... 16
SECTION 3.1 Payment Account............................................................. 16
ARTICLE IV. DISTRIBUTIONS; REDEMPTION..................................................................... 17
SECTION 4.1 Distributions............................................................... 17
SECTION 4.2 Redemption.................................................................. 18
SECTION 4.3 [Repayment at Option of Holders............................................. 20
SECTION 4.4 Subordination of Common Securities.......................................... 21
SECTION 4.5 Payment Procedures.......................................................... 22
SECTION 4.6 Tax Returns and Reports..................................................... 22
SECTION 4.7 Payment of Taxes, Duties, Etc. of the Trust................................. 23
SECTION 4.8 Payments under Indenture or Pursuant to Direct Actions...................... 23
ARTICLE V. TRUST SECURITIES CERTIFICATES................................................................. 23
SECTION 5.1 Initial Ownership........................................................... 23
SECTION 5.2 The Trust Securities Certificates........................................... 23
SECTION 5.3 Execution and Delivery of Trust Securities Certificates..................... 24
SECTION 5.4 Registration of Transfer and Exchange of Preferred
Securities Certificates..................................................... 24
SECTION 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates................................................................ 25
SECTION 5.6 Persons Deemed Holders...................................................... 25
SECTION 5.7 Access to List of Holders' Names and Addresses.............................. 25
SECTION 5.8 Maintenance of Office or Agency............................................. 25
SECTION 5.9 Appointment of Paying Agent................................................. 26
SECTION 5.10 Ownership of Common Securities by Depositor................................. 26
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SECTION 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate...................................................... 27
SECTION 5.12 Notices to Clearing Agency.................................................. 28
SECTION 5.13 Definitive Preferred Securities Certificates................................ 28
SECTION 5.14 Rights of Holders........................................................... 28
ARTICLE VI. ACTS OF SECURITYHOLDERS; MEETINGS; VOTING..................................................... 31
SECTION 6.1 Limitations on Voting Rights................................................ 31
SECTION 6.2 Notice of Meetings.......................................................... 32
SECTION 6.3 Meetings of Holders of Preferred Securities................................. 32
SECTION 6.4 Voting Rights............................................................... 32
SECTION 6.5 Proxies, etc................................................................ 32
SECTION 6.6 Holder Action by Written Consent............................................ 33
SECTION 6.7 Record Date for Voting and Other Purposes................................... 33
SECTION 6.8 Acts of Holders............................................................. 33
SECTION 6.9 Inspection of Records....................................................... 34
ARTICLE VII. REPRESENTATIONS AND WARRANTIES....................................................... 35
SECTION 7.1 Representations and Warranties of the Property Trustee
and the Delaware Trustee............................................................. 35
SECTION 7.2 Representations and Warranties of Depositor................................. 36
ARTICLE VIII. THE TRUSTEES......................................................................... 36
SECTION 8.1 Certain Duties and Responsibilities......................................... 36
SECTION 8.2 Certain Notices............................................................. 38
SECTION 8.3 Certain Rights of Property Trustee.......................................... 38
SECTION 8.4 Not Responsible for Recitals or Issuance of Securities............................... 40
SECTION 8.5 May Hold Securities......................................................... 40
SECTION 8.6 Compensation; Indemnity; Fees........................................................ 41
SECTION 8.7 Corporate Property Trustee Required; Eligibility of
Trustees.................................................................... 42
SECTION 8.8 Conflicting Interests................................................................ 42
SECTION 8.9 Co-Trustees and Separate Trustee............................................ 43
SECTION 8.10 Resignation and Removal; Appointment of Successor........................... 44
SECTION 8.11 Acceptance of Appointment by Successor...................................... 45
SECTION 8.12 Merger, Conversion, Consolidation or Succession to
Business.................................................................... 46
SECTION 8.13 Preferential Collection of Claims Against Depositor or
Trust....................................................................... 46
SECTION 8.14 Reports by Property Trustee................................................. 47
SECTION 8.15 Reports to the Property Trustee............................................. 48
SECTION 8.16 Evidence of Compliance with Conditions Precedent............................ 48
SECTION 8.17 Number of Trustees.......................................................... 48
SECTION 8.18. Delegation of Power......................................................... 49
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ARTICLE IX. TERMINATION, LIQUIDATION AND MERGER........................................................... 49
SECTION 9.1 Perpetual Existence......................................................... 49
SECTION 9.2 Early Termination........................................................... 49
SECTION 9.3 Termination................................................................. 50
SECTION 9.4 Liquidation................................................................. 50
SECTION 9.5 Mergers, Consolidations, Amalgamations or
Replacements of the Trust................................................... 51
ARTICLE X. MISCELLANEOUS PROVISIONS...................................................................... 52
SECTION 10.1 Limitation of Rights of Holders............................................. 52
SECTION 10.2 Amendment................................................................... 53
SECTION 10.3 Separability................................................................ 54
SECTION 10.4 Governing Law............................................................... 54
SECTION 10.5 Payments Due on Non-Business Day............................................ 54
SECTION 10.6 Successors.................................................................. 54
SECTION 10.7 Headings.................................................................... 55
SECTION 10.8 Reports, Notices and Demands................................................ 55
SECTION 10.9 Agreement Not to Petition................................................... 55
SECTION 10.10 Trust Indenture Act; Conflict with Trust Indenture Act...................... 56
SECTION 10.11 Acceptance of Terms of Trust Agreement, Guarantee and
Indenture................................................................... 56
SECTION 10.12 Expenses.................................................................... 57
EXHIBIT B FORM OF LETTER TO DEPOSITORY TRUST COMPANY........................................... 59
EXHIBIT C....................................................................................................... 60
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AMENDED AND RESTATED DECLARATION OF TRUST AND TRUST AGREEMENT,
dated as of __________________, 1997, among (i) Willamette Industries, Inc., an
Oregon corporation (including any successors or assigns, the "Depositor"), (ii)
[__________________________], a national banking corporation duly organized and
existing under the laws of [_____________], as property trustee, (in each such
capacity, the "Property Trustee" and, in its separate corporate capacity and not
in its capacity as Property Trustee, the"Bank"), (iii) Chase Manhattan Bank
Delaware, a banking corporation duly organized and existing under the laws of
the State of Delaware, as Delaware trustee (the"Delaware Trustee"), (iv) X. X.
Xxxxxx, an individual, and Xxxxxx X. Xxxxxxxx, an individual, each of whose
address is c/o Willamette Industries, Inc., 0000 X.X. Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxx, Xxxxxx 00000 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the"Trustees") and (v) the
several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Delaware Trustee, and the
Administrative Trustees have previously duly declared and established a business
trust pursuant to the Delaware Business Trust Act, by entering into a
Declaration of Trust dated as of July 30, 1997 (the "Original Trust Agreement"),
and by executing and filing with the Secretary of State of the State of Delaware
of the Certificate of Trust, filed on July 31, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to duly declare
and establish a business trust pursuant to the Delaware Business Trust Act and
the Certificate of Trust by entering into this Trust Agreement to restate and
amend the Original Trust Agreement to provide for, among other things, (i) the
issuance of the Common Securities by the Trust to the Depositor, (ii) the
issuance and sale of the Preferred Securities by the Trust pursuant to the
Underwriting Agreement, (iii) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Subordinated Debt Securities and
(iv) the appointment of the Property Trustee and Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
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ARTICLE I.
DEFINED TERMS
SECTION 1.1 Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" 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 Defaulted
Interest (as defined in the Indenture) paid by the Depositor on Subordinated
Debt Securities having an aggregate principal amount equal to such given
Liquidation Amount for such period.
"Administrative Trustee" means each of the Persons identified
as an "Administrative Trustee" in the preamble to this Trustee Agreement solely
in such Person's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such Person'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.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
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"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.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or (c) a day
on which the Property Trustee's Corporate Trust Office or the Corporate Trust
Office of the Indenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository Trust Company 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.
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"Closing Date" means the First Time of Delivery, which date is
also the date of execution and delivery of this Trust Agreement.
["Collateral Agent" shall mean -------------------, as
collateral agent under the Pledge Agreement, dated the date hereof, among the
Depositor, the collateral agent, -------------, as purchase contract agent and
the holders from time to time of the Depositor's ---% Automatic Convertible
Exchange Securities.]
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, 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 Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $----------- and having
the rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to
the Property Trustee, the principal office of the Property Trustee located in
[NEW YORK, NEW YORK], and (ii) when used with respect to the Indenture Trustee,
the principal office of the Indenture Trustee located in
[-----------------------].
"Creditor" has the meaning specified in Section 10.12.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates issued
as Book-Entry Preferred Securities Certificates as provided in Section 5.11(a)
and (b) Preferred Securities Certificates issued in certificated, fully
registered form upon original issuance thereof or as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (Section) 3801, et seq., as it may be amended from
time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
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"Direct Action" has the meaning specified in Section 5.14.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination 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 of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Indenture Event of Default; or
(b) default by the Property Trustee 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 Property Trustee 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 Trustees in this Trust Agreement
(other than a covenant or warranty a default in the performance or breach of
which is dealt with 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 defaulting Trustee or Trustees by the Holders of at least
25% in aggregate liquidation preference 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 and the failure by the Depositor to appoint a successor
Property Trustee within 60 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.
"First Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and [--------------------------], as trustee,
contemporaneously with the
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execution and delivery of this Trust Agreement, for the benefit of the holders
of the Preferred Securities, as amended from time to time.
"Holder" or "Securityholder"means a Person in whose name a
Trust Security or Trust Securities is registered in the Securities Register; any
such Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Indemnified Person" has the meaning specified in Section 8.6.
"Indenture" means the Indenture of Subordinated Debt
Securities, dated as of --------------, 1997, between the Depositor and the
Indenture Trustee, as trustee, as amended or supplemented from time to time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Indenture Redemption Date" means, with respect to any
Subordinated Debt Securities to be redeemed under the Indenture, the date fixed
for redemption under the Indenture.
"Indenture Trustee" means [---------------------------------],
a banking corporation duly organized under the laws of the State of
[---------------], and any successor thereto.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Subordinated Debt Securities to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Common Securities
and to the Preferred Securities based upon the relative Liquidation Amounts of
such classes of Trust Securities and the proceeds of which will be used to pay
the Redemption Price of such Trust Securities, and (b) with respect to a
distribution of Subordinated Debt Securities to Holders of Trust Securities in
connection with a dissolution or liquidation of the Trust, Subordinated Debt
Securities having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Subordinated Debt Securities are
distributed.
"Liquidation Amount" means the stated amount of $--- per Trust
Security.
"Liquidation Date" means the date on which Subordinated Debt
Securities are to be distributed to Holders of Trust Securities in connection
with a termination and liquidation of the Trust pursuant to Section 9.4(a).
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"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Officers' Certificate" means a certificate signed by the
Chairman and Chief Executive Officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
appropriate Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property Trustee or
any Paying Agent for the Holders of such Trust Securities; provided that, if
such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
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(c) Trust Securities which have been paid or in exchange for
or in lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.11 and 5.13; 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 Trustee or any Affiliate of the Depositor or any Trustee
shall be disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such 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
Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Holders in which all amounts paid in
respect of the Subordinated 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 any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $-- and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit E.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust
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heretofore formed and continued hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor property trustee
appointed as herein provided.
["Purchase Contract Settlement Date" means
------------------------, ----.]
["Put Option" shall have the meaning specified in Section
4.3.]
["Put Option Exercise Date" shall have the meaning specified
in Section 4.3.]
["Put Option Exercise Price" shall have the meaning specified
in Section 4.3.]
"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 Subordinated Debt Security Redemption Date and the
stated maturity of the Subordinated 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
Subordinated Debt Securities, allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Second Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Subordinated Debt Securities" means the aggregate principal
amount of the Depositor's -----% [Notes/Subordinated Debt Securities], Series -,
issued pursuant to the Indenture.
"Time of Delivery" means, collectively, the First Time of
Delivery and the Second Time of Delivery.
"Trust" means the Delaware business trust created and
continued hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Trust Agreement, as the same may
be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto and (ii) for all purposes
of this Trust Agreement and any such
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modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Subordinated Debt Securities,
(b) the rights of the Property Trustee under the Guarantee, (c) any cash on
deposit in, or owing to, the Payment Account and (d) 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.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Pricing Agreement, dated as
of ----------- --, 1997, among the Trust, the Depositor and the underwriters
named therein incorporating the Underwriting Agreement dated --------- --, 1997.
ARTICLE II.
CONTINUATION OF THE TRUST
SECTION 2.1 Name.
The Trust continued hereby shall be known as "Willamette
Capital II," 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 Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
SECTION 2.2 Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware
is 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or such other address
in the State of Delaware as the Delaware Trustee may designate by written notice
to the Holders and the Depositor.
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The principal executive office of the Trust is c/o Willamette Industries, Inc.,
0000 X.X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000.
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 Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4 Issuance of the Preferred Securities.
Pursuant to the Original Trust Agreement, on -----------,
199-, the Depositor on behalf of the Trust executed and delivered the
Underwriting Agreement and, contemporaneously with the execution and delivery
hereof, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriters named in the
Underwriting Agreement Preferred Securities Certificates, registered in the name
of the nominee of the initial Clearing Agency, in an aggregate amount of
----------- Preferred Securities having an aggregate Liquidation Amount of
$-----------, against receipt of such aggregate purchase price of such Preferred
Securities of $-----------, which amount the Administrative Trustee shall
promptly deliver to the Property Trustee. If there is a Second Time of Delivery,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2 and deliver to the Underwriters named in the Underwriting
Agreement Preferred Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of up to
---------- Preferred Securities having an aggregate Liquidation Amount of up to
$-----------, against receipt of the aggregate purchase price of such Preferred
Securities equal to the Liquidation Amount thereof, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
SECTION 2.5 Issuance of the Common Securities; Subscription and
Purchase of Subordinated Debt Securities.
Contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of ------- Common Securities having an aggregate Liquidation
Amount of $------------ against payment by the Depositor of such amount, which
amount such Administrative Trustee shall promptly deliver to the Property
Trustee. Contemporaneously therewith, an Administrative Trustee, on behalf of
the Trust, shall subscribe to and purchase from the Depositor Subordinated Debt
Securities, registered in the name of the Trust and having an aggregate
principal amount equal to $---------, and, in satisfaction of the purchase price
for such Subordinated Debt Securities, the Property
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Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$--------- (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the first sentence of Section 2.4 and (ii) the first sentence of
this Section 2.5). If there is a Second Time of Delivery, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of up to ------- Common Securities
having an aggregate Liquidation Amount of up to $---------- against payment by
the Depositor of such amount, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Subordinated Debt Securities, registered in the name of the
Trust and having an aggregate principal amount of up to $-----------, and, in
satisfaction of the purchase price for such Subordinated Debt Securities, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
amount received from one of the Administrative Trustees pursuant to the last
sentence of Section 2.4 (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the third
sentence of this Section 2.5).
SECTION 2.6 Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Subordinated Debt Securities, and (b) to engage in those activities
necessary or incidental thereto. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the 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 Trust and the
Securityholders. 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 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 Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.7 Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
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(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Certificate
Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and
function of the Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Subordinated Debt Securities to the Holders in
accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating
agent and Securities Registrar in accordance with this Trust
Agreement;
(G) execution of the Trust Securities in accordance
with this Trust Agreement and execution and delivery of
closing certificates pursuant to the Underwriting Agreement;
(H) registering transfer of the Trust Securities in
accordance with this Trust Agreement;
(I) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(J) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the
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Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Trust
Agreement; and
(K) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Holders (without
consideration of the effect of any such action on any
particular Holder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Subordinated Debt Securities;
(C) the collection of interest, principal and any
other payments made in respect of the Subordinated Debt
Securities in the Payment Account;
(D) the distribution through the Paying Agent of
amounts owed 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 Subordinated Debt Securities;
(F) the sending of notices of default and other
information regarding the Trust Securities and the
Subordinated 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 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
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, 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 cause the
Trust to fail or cease to qualify as a "grantor trust" for U.S. Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt, (v) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property, or (vi) take or cause or permit the Trust to
engage in any activity that is not consistent with the purposes of the Trust.
The Administrative Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the 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
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to comply
with the applicable laws of any such states;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to
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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
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or fail to be
classified as a grantor trust for U.S. Federal income tax purposes and so that
the Subordinated Debt Securities will be treated as indebtedness of the
Depositor for U.S. Federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and any Administrative Trustee determines
in its discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the Holders of the Preferred Securities.
SECTION 2.8 Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9 Title to Trust Property.
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Holders in accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by 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.
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(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 Subordinated 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 Defaulted Interest, as defined in the
Indenture) are made on the Subordinated Debt Securities.
Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall accrue
from --------------, 19--, and, except in the event (and to the extent)
that the Depositor exercises its right, if any, to defer the payment of
interest on the Subordinated Debt Securities pursuant to the Indenture,
shall be payable [quarterly] [semi-annually] in arrears on
-----------------------------------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 is in the next
succeeding calendar year, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case with the same
force and effect as if made on such date (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming payments of interest on the Subordinated Debt
Securities are made when due (and before giving effect to Additional
Amounts, if applicable), Distributions on the Trust Securities shall be
payable at a rate of ----% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions for any period less than
a full period shall be computed on the basis of a 360-day year of
twelve 30-day months. Distributions payable for each full Distribution
period will be computed by dividing the rate per annum by [four] [two].
The amount of Distributions payable for any period shall include the
Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date
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only to the extent that the 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 the ---------- next preceding the relevant
Distribution Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record date shall
be the ----------- next preceding the relevant Distribution Date.
SECTION 4.2 Redemption.
(a) On each Subordinated Debt Security Redemption Date and on
the stated maturity of the Subordinated Debt Securities, the Trust will be
required to redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot
be calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that notice of
such actual Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said
date, except as provided in Section 4.2(d) below; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
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(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Subordinated 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 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 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 thereof.
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 funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders thereof upon surrender of their
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 on or prior to the Redemption Date, but without
interest, and such Securities will cease to be outstanding. In the event that
any date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Depositor pursuant to the Guarantee, Distributions
on such Trust Securities will continue to accumulate, at the then applicable
rate, from the Redemption Date originally established by the 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 4.4(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities. The particular Preferred Securities to
be redeemed shall be selected on a pro rata basis (based upon Liquidation
Amounts) not more than 60 days prior to the Redemption Date by the
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Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by such method (including, without limitation, by lot) as the
Property Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of Preferred Securities, or with respect to
Book-Entry Preferred Securities, in accordance with the Clearing Agency's
customary procedures. The Property Trustee shall promptly notify the Security
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. In the event that less than all of
the Preferred Securities (other than Book-Entry Preferred Securities)
represented by a Preferred Securities Certificate are to be redeemed, upon
surrender of such Preferred Securities Certificate the Administrative Trustee,
or any one of them, shall execute and deliver to the Paying Agent, for further
delivery to the Holder of such Preferred Securities without service charge, a
new Preferred Securities Certificate representing the unredeemed Preferred
Securities evidenced by the Preferred Securities Certificate so surrendered. 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 Liquidation Amount of Preferred Securities that has been or
is to be redeemed.
SECTION 4.3 [Repayment at Option of Holders.
(a) Each Holder of Trust Securities, including the Collateral
Agent, shall have the right to require the Trust to repay all or a portion of
the Trust Securities owned by or pledged with such Holder (the "Put Option") on
the Business Day immediately preceding the Purchase Contract Settlement Date
(the "Put Option Exercise Date") at a repayment price of $----- per Trust
Security plus an amount equal to accrued Distributions thereon to the date of
payment [plus -- insert applicable repayment premium, if any] (the "Put Option
Repayment Price").
(b) The Trust will obtain funds to pay the Put Option
Repayment Price of Trust Securities being repaid under the Put Option by
presenting to the Depositor, pursuant to the Trust's right under the
Subordinated Debt Securities to require the Depositor to repay all or a portion
of the Subordinated Debt Securities on the Put Option Exercise Date,
Subordinated Debt Securities in an aggregate principal amount equal to the
aggregate stated Liquidation Amount of such Trust Securities for repayment on
the Put Option Exercise Date at the Subordinated Debt Security Repayment Price
(as defined in the Subordinated Debt Securities).
(c) In order for the Trust Securities to be repaid on the Put
Option Exercise Date, the Trust must receive at the Corporate Trust Office of
the Property Trustee, either (i) not less than 10 or more than 30 days prior to
the Put Option Exercise Date, the Trust Securities to be repaid with the form
entitled "Option to Elect Repayment" on the reverse thereof or otherwise
accompanying such Trust Security duly completed. Any such notice received by the
Trust shall be irrevocable. All questions as to the validity, eligibility
(including time of receipt) and acceptance of the Trust Securities for repayment
shall be
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determined by the Trust, whose determination shall be final and binding.
Notwithstanding the foregoing, so long as the Holder is the Collateral Agent,
such notice to elect repayment may be delivered to the Trust at any time prior
to ------- a.m., New York City time, on the Put Option Exercise Date and in the
form and manner as may be designated by the Collateral Agent.
(d) Payment of the Put Option Repayment Price to Holders of
Trust Securities shall be made at the Corporate Trust Office of the Property
Trustee, provided that the Depositor has paid the Property Trustee a sufficient
amount of cash in connection with the related repayment of the Subordinated Debt
Security. Notwithstanding the foregoing, so long as the Holder of any Trust
Securities is the Collateral Agent, the payment of the Put Option Repayment
Price in respect of such Trust Securities held by the Collateral Agent shall be
made no later than 1:00 p.m., New York City time, on the Put Option Exercise
Date by check or wire transfer in immediately available funds at such place and
to such account as may be designated by the Collateral Agent. If the Property
Trustee holds immediately available funds sufficient to pay the Put Option
Repayment Price of such Trust Securities, then, immediately prior to the close
of business on the Put Option Exercise Date, such Trust Securities will cease to
be outstanding and distributions thereon will cease to accrue, whether or not
Trust Securities are delivered to the Property Trustee, and all other rights of
the Holder in respect of the Trust Securities, including the Holder's right to
require the Trust to repay such Trust Securities, shall terminate and lapse
(other than the right to receive the Put Option Repayment Price but without
interest on such Put Option Repayment Price). Neither the Regular Trustees nor
the Trust shall be required to register or cause to be registered the transfer
of any Trust Securities for which repayment has been elected. If payment of the
Put Option Repayment Price in respect of Trust Securities is (i) improperly
withheld or refused and not paid either by the Property Trustee or by the
Depositor as guarantor pursuant to the Guarantee, or (ii) not paid by the
Property Trustee as the result of an Event of Default with respect to the
Subordinated Debt Securities presented for repayment as described in Section
4.3(b), Distributions on such Trust Securities will continue to accrue, from the
original Put Option Exercise Date to the actual date of payment, in which case
the actual payment date will be considered the Put Option Exercise Date for
purposes of calculating the Put Option Repayment Price.]
SECTION 4.4 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price 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 such
Common Securities and Capital Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting from an
Indenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable) on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all
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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, shall have
been made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, 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 Holder of Common Securities
will be deemed to have waived any 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 any such Event of Default under this Trust Agreement
with respect to the Preferred Securities has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the Holders of
the Preferred Securities and not the Holder 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 4.5 Payment Procedures.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made by wire
transfer, at the option of the relevant Trustee, or otherwise by check mailed to
the address of the Person entitled thereto as such address shall appear on the
Securities Register, except if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable Distribution Dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Holder of the Common Securities.
SECTION 4.6 Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all U.S. Federal, state and
local tax and information returns and reports required to be filed by or in
respect of the Trust. In this regard, the Administrative Trustees shall (a)
prepare and file (or cause to be prepared and filed) the appropriate Internal
Revenue Service Form required to be filed in respect of the Trust in each
taxable year of the Trust and (b) prepare and furnish (or cause to be prepared
and furnished) to each Holder the appropriate Internal Revenue Service form
required to be provided on such form. 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 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.
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On or before December 15 of each year during which any Trust
Securities are Outstanding, the Administrative Trustees shall furnish to the
Property Trustee such information as may be reasonably requested by the Property
Trustee in order that the Property Trustee may prepare the information which it
is required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Code. Such information shall include the
amount of original issue discount includable in income for each outstanding
Trust Security during such year.
SECTION 4.7 Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Subordinated Debt Securities of
additional amounts distributed with respect to such securities as a result of
the imposition of additional taxes on the Trust, the Property Trustee shall
promptly pay any taxes, duties or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
SECTION 4.8 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 an Owner with respect to the Holder's Preferred Securities has
directly received pursuant to Section 5.8 of the Indenture or Section 5.14(c) of
this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1 Initial Ownership.
Upon the formation of the 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 Trust.
SECTION 5.2 The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in
minimum denominations of $-- Liquidation Amount and integral multiples of $-- in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $-- Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the 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 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
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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 5.4.
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 Trust and
delivered to or upon the written order of the Depositor, signed by its chairman
of the board, its president, any executive vice president or any vice president,
treasurer or assistant treasurer or controller without further corporate action
by the Depositor, in authorized denominations.
SECTION 5.4 Registration of Transfer and Exchange of Preferred
Securities Certificates.
The Depositor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and exchanges
of Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.8, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees.
The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption. At
the option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to an Administrative Trustee
and the Securities Registrar duly executed by the
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Holder or his attorney duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by an Administrative Trustee in accordance
with such Person's customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
SECTION 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6 Persons Deemed Holders.
The Trustees or the Securities Registrar shall treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
SECTION 5.7 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 or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.8 Maintenance of Office or Agency.
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The Administrative Trustees shall maintain an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate Willamette
Industries, Inc., 0000 X.X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000,
Attn: X. X. Xxxxxx as its principal corporate trust office for such purposes.
The Administrative Trustees shall give prompt written notice to the Depositor
and to the Holders of any change in the location of the Securities Register or
any such office or agency.
SECTION 5.9 Appointment of Paying Agent.
The Paying Agent shall make distributions to Holders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
reasonably acceptable to the Administrative Trustees and the Depositor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees, the Property Trustee and
the Depositor. In the event that the Bank shall no longer be the Paying Agent or
a successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is reasonably acceptable
to the Property Trustee and the Depositor to act as Paying Agent (which shall be
a bank or trust company). The Administrative Trustees shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the 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
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 5.10 Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and
retain beneficial and record ownership of the Common Securities. To the fullest
extent permitted by law, other than a transfer in connection with a
consolidation or merger of the Depositor into another corporation, or any
conveyance, transfer or lease by the Depositor of its properties and assets
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substantially as an entirety to any Person, pursuant to Section 8.1 of the
Indenture, any attempted transfer of the Common Securities shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE."
SECTION 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, may be issued in the form of Definitive Preferred Securities
Certificates in fully registered form or in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry Preferred
Securities Certificates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Book-Entry
Preferred Securities Certificate or Certificates shall initially be registered
on the Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive Preferred Securities
Certificate representing such Owner's interest in such Preferred Securities,
except as provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive
and transmit payments on the Preferred Securities to such Clearing
Agency Participants.
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(b) 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 5.12 Notices to Clearing Agency.
To the extent that a notice or other communication to the
Owners is required under this Trust Agreement, unless and until Definitive
Preferred Securities Certificates shall have been issued to Owners, the Trustees
shall give all such notices and communications specified herein to be given to
Owners to the Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13 Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Securities Certificates, and the
Depositor is unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of an
Indenture Event of Default, Owners of Preferred Securities Certificates
representing beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Administrative Trustee shall notify the Clearing Agency and the Clearing Agency
shall notify all Owners of Preferred Securities Certificates and the other
Trustees of the occurrence of any such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or Certificates
representing the Book-Entry Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the 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.
SECTION 5.14 Rights of Holders.
(a) The legal title to the Trust Property is vested
exclusively in the Property Trustee (in its capacity as such) in accordance with
Section 2.9, and the Holders shall not have any right or title therein other
than the undivided beneficial interest in the
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assets of the 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 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 Trust. The Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon an Indenture Event of Default, the Indenture Trustee fails
or the holders of not less than 25% in principal amount of the outstanding
Subordinated Debt Securities fail to declare the principal of all of the
Subordinated 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 such right by a notice in writing to the Depositor and the Indenture
Trustee; and upon any such declaration such principal amount of and the accrued
interest on all of the Subordinated Debt Securities shall become immediately due
and payable, provided that the payment of principal and interest on such
Subordinated Debt Securities shall remain subordinated to the extent provided in
the Indenture.
At any time after such a declaration of acceleration with
respect to the Subordinated Debt Securities has been made and before a judgment
or decree for payment of the money due has been obtained by the Indenture
Trustee as in the Indenture provided, the Holders of a majority (based on
Liquidation Amounts) of the Outstanding 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 (including
any Defaulted Interest (as defined in the Indenture)) on all
of the Subordinated Debt Securities,
(B) the principal of (and premium, if any, on) any
Subordinated Debt Securities which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate borne by the Subordinated Debt Securities, and
(C) 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
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(ii) all Events of Default with respect to the Subordinated
Debt Securities, other than the non-payment of the principal
of the Subordinated Debt Securities which has become due
solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of a majority (based on Liquidation Amounts) of
the Outstanding 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 which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Subordinate 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 the Preferred Securities all or part of which is represented by Book-Entry
Preferred Securities Certificates, 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 which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon 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 the principal amount of or interest on Subordinated Debt
Securities having a principal amount equal to the Liquidation Amount of the
Preferred Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the applicable series of Subordinated Debt
Securities. In connection with such Direct Action, the Depositor will be
subrogated to the rights of such Holder under this Trust Agreement to the extent
of any payment made by the Depositor to such Holder in such Direct Action.
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Except as set forth in Section 5.14(b) and this Section 5.14(c), the Holders of
Preferred Securities shall have no right to exercise directly any right or
remedy available to the holders of, or in respect of, the Subordinated Debt
Securities.
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10
and 10.2 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 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 Subordinated Debt Securities are held by
the Property Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Indenture
Trustee, or executing any trust or power conferred on the Indenture Trustee with
respect to such Subordinated Debt Securities, (ii) waive any past default which
is waivable under Section 5.13 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Subordinated Debt
Securities shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Subordinated Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority (based on
Liquidation Amounts) of all Outstanding Preferred Securities, provided, however,
that where a consent under the Indenture would require the consent of each
Holder of Subordinated 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 Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the
Subordinated 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 Trustees 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 Trust to fail to be classified as a grantor trust for U.S. Federal
income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides
for, or the 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 Trust, other than pursuant to the terms of this Trust
- 31 -
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 (based on Liquidation Amounts) of the Outstanding 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 Trust to fail to be classified as a grantor trust for U.S.
Federal income tax purposes.
SECTION 6.2 Notice of Meetings.
Notice of all meetings of the Holders of 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 record of a
Preferred Security, at the 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 Preferred Securities.
No annual meeting of Holders is required to be held. The
Administrative Trustees, however, shall call a meeting of Holders of Preferred
Securities to vote on any matter upon the written request of the Holders of
record of 25% of the Preferred Securities (based upon Liquidation Amounts) and
the Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Securities to vote on any
matters as to which Holders of Preferred Securities are entitled to vote.
Holders of record of 50% of the Outstanding Preferred
Securities (based upon Liquidation Amounts), present in person or by proxy,
shall constitute a quorum at any meeting of Holders.
If a quorum is present at a meeting, an affirmative vote by
the Holders of record of Preferred Securities present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon Liquidation
Amounts) held by the Holders of record of Preferred Securities present, either
in person or by proxy, at such meeting shall constitute the action of the
Holders of Preferred Securities, unless this Trust Agreement requires a greater
number of affirmative votes.
SECTION 6.4 Voting Rights.
Holders shall be entitled to one vote for each $----- of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Holders are entitled to vote.
SECTION 6.5 Proxies, etc.
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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 Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees 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 which may be taken by Holders at a meeting may be
taken without a meeting if Holders holding more than a majority of all
Outstanding Trust Securities (based upon Liquidation Amounts) entitled to vote
in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
SECTION 6.7 Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled
to notice of and to vote at any meeting or by written consent, or to participate
in any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Holders or the payment of
a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8 Acts of Holders.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement to
be given, made or taken by Holders or Owners may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders or
Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders or Owners
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and
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(subject to Section 8.1) conclusive in favor of the 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 which any Trustee receiving the same deems sufficient.
The ownership of Preferred 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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders and the
Administrative Trustees or among such Holders or 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 Trustee under this
Article VI, then the determination of such matter by the Property Trustee shall
be conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any person or entity.
SECTION 6.9 Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the 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.
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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 banking corporation, duly
organized, validly existing and in good standing under the laws of
[--------------------];
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly
organized, validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or other action on
the part of the Property Trustee and the Delaware Trustee and does not require
any approval of stockholders of the Property Trustee and the Delaware Trustee
and such execution, delivery and performance will not (i) violate the Charter or
By-laws of the Property Trustee or the Delaware Trustee, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to which
the Property Trustee or the Delaware Trustee is a party or by which it is bound,
or (iii) violate any law, governmental rule or regulation of the United States
or the State of Delaware, as the case may be, governing the
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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 or therein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing Federal law governing the banking, trust or general powers of
the Property Trustee or the Delaware Trustee, as the case may be, under the laws
of the United States or the State of Delaware;
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in any court
or before any governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would materially and adversely affect
the Trust or would question the right, power and authority of the Property
Trustee or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2 Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit
of the Holders that:
(a) the Trust Securities Certificates issued at each Time of
Delivery on behalf of the Trust have been duly authorized and will have been,
duly and validly executed, issued and delivered by the Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this Trust
Agreement and the Holders will be, as of each such date, entitled to the
benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
SECTION 8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act.
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Notwithstanding the foregoing, no provision of this Trust Agreement shall
require the Trustees to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity 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 Trustees
shall be subject to the provisions of this Section. Nothing in this Trust
Agreement shall be construed to release an Administrative Trustee from liability
for its own gross negligent action, its own gross negligent failure to act, or
its own willful misconduct. To the extent that, at law or in equity, an
Administrative Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Holders, such Administrative Trustee
shall not be liable to the Trust or to any Holder for such Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Holders to replace such other duties and liabilities of
the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Holder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
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(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Subordinated
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;
(iv) 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; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
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, the Administrative Trustees and the
Depositor, 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, if any, to defer the payment of interest on
the Subordinated Debt Securities pursuant to the Indenture, the Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such exercise to the Holders and the Property Trustee, unless
such exercise shall have been revoked.
SECTION 8.3 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses of action
or (ii) in construing any of
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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 Preferred
Securities are entitled to vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a notice to the Depositor requesting written
instructions of the Depositor 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 or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (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, such counsel may be counsel to the Depositor or any
of its Affiliates, and may include any of its employees; the Property Trustee
shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent jurisdiction;
(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 which might be
incurred by it in compliance with such request or direction;
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(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 recklessness 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 of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 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 Trust, and the Trustees do
not assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Subordinated Debt Securities.
SECTION 8.5 May Hold Securities.
Except as provided in the definition of the term "Outstanding"
in Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other
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capacity, may become the owner or pledgee of Trust Securities and, subject to
Sections 8.8 and 8.13, may otherwise deal with the Trust with the same rights it
would have if it were not a Trustee or such other agent.
SECTION 8.6 Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent of
any Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(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 termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
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 willful misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement.
No Trustee may claim any lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee (subject to Section 8.8, in the
case of the Property Trustee) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the 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 Trust, shall not be deemed wrongful or improper. Neither the
Depositor, nor any Trustee,
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shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any 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 Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.7 Corporate Property Trustee Required; Eligibility of
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 eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
SECTION 8.8 Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed
to be specifically described in this Trust Agreement for the purposes of clause
(i) of the first provision contained in Section 310(b) of the Trust Indenture
Act.
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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 Depositor and the
Administrative Trustees, by agreed action of the majority of such Trustees,
shall have power to appoint, and upon the written request of the Administrative
Trustees, the Depositor shall for such purpose join with the Administrative
Trustees in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Depositor does not join in such appointment within 15 days after the receipt by
it of a request so to do, or in case an Indenture Event of Default has occurred
and is continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder shall be exercised
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument appointing
such co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
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(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 resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee or
any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the 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.
If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Trust, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and
be continuing, any Trustee may be removed or replaced, and the total number of
Trustees may be increased or decreased at any time by Act of the Holder of the
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 (based on
Liquidation Amounts) of the Outstanding Preferred Securities, delivered to the
Relevant Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Holder of the Common Securities at
any time.
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If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Indenture Event of Default shall have occurred and
be continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring 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 (based on Liquidation
Amounts) of the Outstanding 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 Administrative Trustee, at a time when
an Indenture Event of Default shall have occurred and be continuing, the Holder
of the Common Securities by Act of the Holder of the 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 Holder of the
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 such Holder
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 a Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 10.8 and shall give notice to the
Depositor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee 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 are at least two of them 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 and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant
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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 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 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 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 Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the
Delaware Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article and, with respect to the Delaware Trustee, the Delaware
Business Trust Act, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
SECTION 8.13 Preferential Collection of Claims Against Depositor
or Trust.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions)
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shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 8.14 Reports by Property Trustee.
(a) Not later than -------- -- of each year commencing with
------------, 19---, 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 December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) 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 December 31 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
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in the performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust
Securities.
(b) In addition the Property Trustee shall transmit to Holders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the Nasdaq Stock Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, with the Commission and with the Depositor.
SECTION 8.15 Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 8.16 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on
behalf of the Trust 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 8.17 Number of Trustees.
(a) The number of Trustees shall be four, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such
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vacancy is filled by the appointment of an Administrative Trustee in accordance
with Section 8.10, the Administrative Trustees in office, regardless of their
number (and notwithstanding any other provision of this Agreement), shall have
all the powers granted to the Administrative Trustees and shall discharge all
the duties imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of this Trust Agreement, as set
forth herein.
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1 Perpetual Existence.
Unless terminated hereunder, the Trust shall have perpetual
existence.
SECTION 9.2 Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the
Depositor at any time to terminate the Trust and distribute Subordinated Debt
Securities to Holders in exchange for the Preferred Securities (which direction
is optional and wholly within the discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Subordinated Debt Securities; and
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(d) the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
SECTION 9.3 Termination.
The respective obligations and responsibilities of the
Trustees and the Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property Trustee
to Holders upon the liquidation of the Trust pursuant to Section 9.4, or upon
the redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the 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 Trust or
the Holders.
SECTION 9.4 Liquidation.
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.2 occurs, the Trust shall be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to each Holder a Like Amount of Subordinated 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 later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Subordinated Debt Securities or the right to
receive a Liquidation Distribution, as applicable; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Subordinated Debt Securities, or if Section 9.4(d) applies receive a
Liquidation Distribution, as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Subordinated Debt
Securities to Holders, the Property Trustee, either itself acting as exchange
agent or through the appointment of a separate exchange agent, shall establish
such procedures as it shall deem appropriate to effect the distribution of
Subordinated Debt Securities in exchange for the Outstanding Trust Securities
Certificates.
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(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Subordinated Debt
Securities will be issued to holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or their agent for
exchange, (iii) the Depositor shall use its best efforts to have the
Subordinated Debt Securities listed on the New York Stock Exchange or on such
other exchange, interdealer quotation system or self-regulatory organization as
the Preferred Securities are then listed, (iv) any Trust Securities Certificates
not so surrendered for exchange will be deemed to represent a Like Amount of
Subordinated Debt Securities, accruing interest at the rate provided for in the
Subordinated Debt Securities from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Subordinated Debt Securities) and (v) all
rights of Holders holding Trust Securities will cease, except the right of such
Holders to receive Subordinated Debt Securities upon surrender of Trust
Securities Certificates.
(d) In the event that, 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 Subordinated 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 Trust shall
be dissolved, wound-up or terminated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Holders will be entitled to
receive out of the assets of the Trust available for distribution to Holders,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such dissolution,
winding up or termination, the Liquidation Distribution can be paid only in part
because the 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 Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if an Indenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
SECTION 9.5 Mergers, Consolidations, Amalgamations or
Replacements of the Trust.
The Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, or be replaced by or convey, transfer or
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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 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 rank
the same as the Preferred Securities rank in priority with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii) the
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Subordinated
Debt Securities, (iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor 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 Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be 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.
The death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate this
Trust Agreement, nor entitle the legal representatives or heirs of such person
or any Holder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding
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up of the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.2 Amendment.
(a) This Trust Agreement may be amended from time to time by
the Property Trustee, the Administrative Trustees and the Depositor, without the
consent of any Holders, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Trust Agreement, which shall not be inconsistent with the other provisions
of this Trust Agreement, 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
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an investment company
under the 1940 Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the interests of any
Holder, and any amendments of this Trust Agreement shall become effective when
notice thereof is given to the Holders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Holders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from status
of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Holder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after such date; notwithstanding any other
provision herein, without the unanimous consent of the Holders (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c)
of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust for United States Federal income tax
purposes.
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(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
SECTION 10.3 Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.4 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF
THE HOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND
THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF DELAWARE.
SECTION 10.5 Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall
be a day that is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day that is a Business Day (except
as otherwise provided in Sections 4.1(a) and 4.2(d)), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.
SECTION 10.6 Successors.
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Trust or the Relevant
Trustee, including any successor by operation of law. Except in connection with
a consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
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SECTION 10.7 Headings.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
SECTION 10.8 Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Holder or the Depositor may be given or served in writing by
deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Holder of 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 Willamette Industries, Inc., 0000
X.X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000, Attention: X. X. Xxxxxx,
facsimile no.: (000) 000-0000. Any notice to Holders of Preferred Securities
shall also be given to such owners as have, within two years preceding the
giving of such notice, filed their names and addresses with the Property Trustee
for that purpose. Such notice, demand or other communication to or upon a Holder
shall be deemed to have been sufficiently given or made, for all purposes, upon
hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee to [-----------------------------------------------; (b) with respect to
the Delaware Trustee, to Chase Manhattan Bank Delaware, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: ; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of Willamette Capital II."
Such notice, demand or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
SECTION 10.9 Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit
of the Holders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such
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petition by the Depositor against the Trust or the commencement of such action
and raise the defense that the Depositor has agreed in writing not to take such
action and should be stopped and precluded therefrom and such other defenses, if
any, as counsel for the Trustee or the Trust may assert. The provisions of this
Section 10.9 shall survive the termination of this Trust Agreement.
SECTION 10.10 Trust Indenture Act; Conflict with Trust Indenture
Act.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.11 Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH
TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND
SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH
OTHERS.
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SECTION 10.12 Expenses.
In connection with the offering, sale, and issuance of the Subordinated
Debt Securities to the Property Trustee and in connection with the sale of the
Securities, the Depositor, in its capacity as borrower with respect to the
Subordinated Debt Securities, shall:
(a) pay all costs and expenses relating to the offering, sale, and
issuance of the Subordinated Debt Securities, including commissions to the
underwriter payable pursuant to the Underwriting Agreement and compensation of
the Trustee under the Indenture in accordance with the provisions of the
Indenture;
(b) be responsible for and shall pay all debts and obligations (other
than with respect to the Trust Securities) and all costs and expenses of the
Trust (including, but not limited to, costs and expenses relating to the
organization, maintenance, and dissolution of the Trust, the offering, sale, and
issuance of the Trust Securities (including commissions to the underwriters in
connection therewith), the fees and expenses (including reasonable counsel fees
and expenses) of the Property Trustee, the Delaware Trustee, and the
Administrative Trustees, the costs and expenses relating to the operation of the
Trust, including, without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets and the enforcement
by the Property Trustee of the rights of the Holders of the Preferred
Securities);
(c) be primarily liable for any indemnification obligations arising
with respect to this Declaration; and
(d) pay any and all taxes (other than Untied States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs, and
expenses with respect to such taxes of the Trust.
The Depositor's obligations under this Section 10.12 shall be for the
benefit of, and shall be enforceable by, any person to whom such debts,
obligations, costs, expenses, and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Depositor's obligations under this Section 10.12 directly against the Depositor,
and the Depositor irrevocably waives any right or remedy to require that any
such Creditor take any action against the Trust or any other Person before
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proceeding against the Depositor. The Depositor agrees to execute such
additional agreements as may be necessary or desirable in order to give full
effect to the provisions of this Section 10.12.
WILLAMETTE INDUSTRIES, INC.
By: ------------------------------------
Name:
Title:
----------------------------------------,
as Property Trustee
By: ------------------------------------
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: ------------------------------------
Name:
Title:
-----------------------------------------
X. X. Xxxxxx,
as Administrative Trustee
-----------------------------------------
Xxxxxx X. Xxxxxxxx,
as Administrative Trustee
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EXHIBIT B
[Form of Letter to Depository Trust Company]
- 59 -
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER
NUMBER OF COMMON SECURITIES
C-1
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
WILLAMETTE CAPITAL II
----% COMMON SECURITIES
(LIQUIDATION AMOUNT $--- PER COMMON SECURITY)
Willamette Capital II, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
Willamette Industries, Inc., (the "Holder") is the registered owner of ( )
common securities of the Trust representing beneficial interests of the Trust
and designated the ----% Common Securities (liquidation amount $--- per Common
Security) (the "Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of -------, -----, as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ----- day of -------, 19--.
WILLAMETTE CAPITAL II
By:------------------------
Name:
Administrative Trustee
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