EXHIBIT 4.20
FORM OF AMENDED AND RESTATED TRUST AGREEMENT
OF
APACHE TRUST [I/II]
Dated as of _________________
CROSS REFERENCE TABLE(1)
Section of Trust Indenture
Act of 1939, as amended Section of Agreement
310(a).......................................................................................................5.3(a)
310(b)...............................................................................................5.3(c), 5.3(d)
310(c).................................................................................................Inapplicable
311(a).......................................................................................................2.2(b)
311(b).......................................................................................................2.2(b)
311(c).................................................................................................Inapplicable
312(a).......................................................................................................2.2(a)
312(b).......................................................................................................2.2(b)
312(c).................................................................................................Inapplicable
313.............................................................................................................2.3
314(a).............................................................................................2.4, 2.7, 3.6(e)
314(b).................................................................................................Inapplicable
314(c)..........................................................................................................2.5
314(d).................................................................................................Inapplicable
314(e)..........................................................................................................2.5
314(f).................................................................................................Inapplicable
315(a)..............................................................................................3.9(b); 3.10(a)
315(b).......................................................................................................2.7(a)
315(c).......................................................................................................3.9(a)
315(d).......................................................................................................3.9(b)
316(a)..........................................................................................................2.6
316(b)..........................................................................................................2.6
316(c).......................................................................................................3.6(e)
317(a).......................................................................................................3.8(h)
317(b)...............................................................................................3.8(c); 7.2(a)
318..........................................................................................................2.1(c)
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(1) This Cross-Reference Table does not constitute part of the Agreement and
shall not have any bearing upon the interpretation of any of its terms or
provisions.
Table of Contents
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions..................................................................................1
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.............................................................9
Section 2.2 Lists of Holders of Securities...............................................................9
Section 2.3 Reports by the Property Trustee..............................................................9
Section 2.4 Periodic Reports to Property Trustee........................................................10
Section 2.5 Evidence of Compliance With Conditions Precedent............................................10
Section 2.6 Events of Default; Waiver...................................................................10
Section 2.7 Event of Default; Notice....................................................................12
ARTICLE III
ORGANIZATION
Section 3.1 Name........................................................................................13
Section 3.2 Office......................................................................................13
Section 3.3 Purposes....................................................................................13
Section 3.4 Authority...................................................................................14
Section 3.5 Title to Property of the Trust..............................................................14
Section 3.6 Powers and Duties of the Administrative Trustees............................................14
Section 3.7 Prohibition of Actions by the Trust and the Trustees........................................17
Section 3.8 Powers and Duties of the Property Trustee...................................................18
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.................................21
Section 3.10 Certain Rights of Property Trustee..........................................................22
Section 3.11 Delaware Trustee............................................................................24
Section 3.12 Not Responsible for Recitals or Issuance of Securities......................................25
Section 3.13 Duration of Trust...........................................................................25
Section 3.14 Mergers.....................................................................................25
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.....................................................27
Section 4.2 Covenants of the Sponsor....................................................................27
Section 4.3 Rights and Responsibilities of the Sponsor..................................................27
Section 4.4 Right to Proceed............................................................................28
Section 4.5 Expenses....................................................................................28
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ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees..........................................................................29
Section 5.2
Delaware Trustee............................................................................29
Section 5.3 Property Trustee; Eligibility...............................................................30
Section 5.4 Certain Qualifications of Administrative Trustees and
Delaware Trustee Generally............30
Section 5.5 Administrative Trustees.....................................................................31
Section 5.6 Appointment; Removal and Resignation of Trustees............................................31
Section 5.7 Vacancies Among Trustees....................................................................33
Section 5.8 Effect of Vacancies.........................................................................33
Section 5.9 Meetings....................................................................................33
Section 5.10 Delegation of Power.........................................................................34
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.................................34
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions...............................................................................34
ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities.....................................................35
Section 7.2 Paying Agent and Registrar..................................................................38
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust........................................................................39
ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities......................................................................40
Section 9.2 Transfer or Exchange of Certificates........................................................40
Section 9.3 Deemed Security Holders.....................................................................41
Section 9.4 Book Entry Interests........................................................................41
Section 9.5 Notices to Clearing Agency..................................................................41
Section 9.6 Appointment of Successor Clearing Agency....................................................42
Section 9.7 Definitive Trust Preferred Security Certificates............................................42
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates...........................................42
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability...................................................................................43
Section 10.2 Exculpation.................................................................................43
Section 10.3 Fiduciary Duty..............................................................................44
Section 10.4 Indemnification.............................................................................45
Section 10.5 Outside Businesses..........................................................................47
Section 10.6 Trustees' Fees and Expenses.................................................................48
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ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year.................................................................................48
Section 11.2 Certain Accounting Matters..................................................................48
Section 11.3 Banking.....................................................................................48
Section 11.4 Withholding.................................................................................49
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments..................................................................................49
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent............................51
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND
DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Property Trustee..........................................53
Section 13.2 Representations and Warranties of
Delaware Trustee..........................................53
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.....................................................................................54
Section 14.2 Governing Law...............................................................................55
Section 14.3 Intention of the Parties....................................................................55
Section 14.4 Headings....................................................................................55
Section 14.5 Successors and Assigns......................................................................55
Section 14.6 Partial Enforceability......................................................................56
Section 14.7 Entire Agreement............................................................................56
Section 14.8 Remedies....................................................................................56
Section 14.9 Counterparts................................................................................56
EXHIBIT A Terms and Conditions of Securities
EXHIBIT A-1 Form of Trust Preferred Security Certificate
EXHIBIT A-2 Form of Common Security Certificate
iii
FORM OF
AMENDED AND RESTATED
TRUST AGREEMENT
OF
APACHE TRUST [I/II]
[date]
AMENDED AND RESTATED
TRUST AGREEMENT (the "Agreement") dated and
effective as of ________________, among the Trustees (as defined herein), for
the benefit of the Holders (as defined herein), and the Sponsor (as defined
herein).
WHEREAS, certain of the Trustees and the Sponsor created Apache Trust
[I/II] (the "Trust"), a
Delaware statutory trust under the Statutory Trust Act
(as defined herein), pursuant to a
Trust Agreement dated as of March 13, 2000
(the "Original Agreement"), and a Certificate of Trust filed with the Secretary
of State of the State of
Delaware on March 13, 2000;
WHEREAS, prior to the date hereof, no Securities (as defined herein)
have been issued);
WHEREAS, all of the Trustees and the Sponsor, by this Agreement, intend
to amend and restate each and every term and provision of the Original
Agreement;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a
Delaware statutory trust under the Statutory Trust Act
and to constitute this as the governing instrument of the Trust, in
consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.
Unless the context otherwise requires or unless specified in an Exhibit
hereto:
(a) each capitalized term used in this Agreement but not defined in the
preamble has the respective meaning assigned to it in this Section 1.1;
(b) a term defined anywhere in this Agreement has the same meaning
throughout;
(c) all references to the "Agreement" or this "Agreement" are to this
Agreement as modified, supplemented or amended from time to time, and
include Exhibits to this Agreement;
(d) all references in this Agreement to Articles, Sections and Exhibits
are to Articles and Sections of and Annexes and Exhibits to this
Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act, either directly or by
reference therein, has the same meaning when used in this Agreement
unless otherwise defined in this Agreement;
(f) a reference to the singular includes the plural and vice versa;
(g) the words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation;"
(h) all accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles as in effect at the time of computation; and
(i) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section, Exhibit or other subdivision.
"Administrative Trustee" has the meaning set forth in Section 5.1.
"Affiliate" has the meaning given to that term in Rule 405 under the Securities
Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar.
"Authorized Newspaper" means a daily newspaper, in the English language,
customarily published on each day that is a Business Day in The City of New York
and of general circulation in The City of New York.
"Authorized Officer" of a Person means any Person that is authorized to bind
such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate
registered in the name of a Clearing Agency or its nominee, ownership and
transfers of which shall be maintained and made through book entries by a
Clearing Agency as described in Section 9.4.
"Business Day" means any day other than Saturday, Sunday or any day on which
banking institutions and trust companies in The City of New York are permitted
or required by any applicable law or executive order to close.
"Certificate" means a Common Security Certificate or a Trust Preferred Security
Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depository for the
Trust Preferred Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Trust
2
Preferred Securities. Unless otherwise specified in the Terms and Conditions,
DTC shall 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 the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Time" and each "Date of Delivery", if any,
under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to time, or
any successor legislation.
"Commission" means the Securities and Exchange Commission, as from time to time
constituted and existing under the Exchange Act, or, if at any time after the
execution of this instrument such commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" has the meaning set forth in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement dated as of the date
hereof and executed and delivered by the Sponsor and ____________
_______________, as trustee, for the benefit of the Holders of the Common
Securities, as such agreement may be modified, supplemented or amended from time
to time.
"Common Security Certificate" means a definitive certificate in fully registered
form representing a Common Security, which shall be prepared by the Sponsor and
a specimen of which shall be substantially in the form attached hereto as
Exhibit A-2.
"Company Indemnified Person" means (a) any Administrative Trustee; (b) any
Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee or any Affiliate of any Administrative Trustee; or (d)
any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee in The City of
New York at which the corporate trust business of the Property Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Capital Markets Fiduciary Services.
"Covered Person" means: (a) any officer, director, shareholder, partner, member,
representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Creditor" has the meaning set forth in Section 4.5.
"Debenture Event of Default" means an event of default under the Debentures.
3
["Debenture Guarantor" means
Apache Corporation, a
Delaware corporation, in its
capacity as guarantor under the Indenture, and its successors.]
"Debenture Issuer" means [
Apache Corporation, a
Delaware corporation,] [Apache
Finance Australia Pty Ltd, a proprietary company organized under the laws of the
Australian Capital Territory, Australia,] [Apache Finance Canada II Corporation,
an unlimited liability company organized under the laws of Nova Scotia, Canada,]
or any successor entity, in its capacity as issuer of the Debentures under the
Indenture.
"Debenture Trustee" means ___________________, a ________ banking corporation as
trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.
"Debentures" means the debt securities to be purchased by the Trust specified in
the Terms and Conditions.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direction" by a Person means a written direction signed: (a) if the Person is a
natural person, by that Person; or (b) in any other case, in the name of such
Person by one or more Authorized Officers of that Person.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" has the meaning set forth in the Terms and Conditions.
"DTC" means The Depository Trust Company or any successor entity.
"Event of Default" means a Debenture Event of Default or any Other Document
Event of Default has occurred and is continuing.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time, or any successor legislation.
"Fiduciary Indemnified Person" means (a) the Property Trustee, (b) the Delaware
Trustee, (c) any Affiliate of the Property Trustee or the Delaware Trustee, and
(d) any officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee or the
Delaware Trustee.
["Foreign Taxes" has the meaning set forth in Section 14.10.]
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" or "holder" means a Person in whose name a Security is registered, such
Person being a beneficial owner within the meaning of the Statutory Trust Act.
4
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture specified in the Terms and Conditions, among the
Debenture Issuer[, the Debenture Guarantor] and the Debenture Trustee under
which the Debentures are issued, as such indenture may be modified, supplemented
or amended from time to time, and includes any indenture supplemental thereto.
"Investment Company" means an entity required to register as an investment
company under the Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as amended
from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount" with respect to Securities of any class means,
except as provided elsewhere in this Agreement or by the Trust Indenture Act,
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus any accrued and
unpaid Distributions to the date upon which the voting or written consent
percentages are determined) of all outstanding Securities of such class.
"Officers' Certificate" means, with respect to (A) the Sponsor, a certificate
signed by the Chairman of the Board, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Sponsor and (B) any other Person, a certificate
signed by any two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Agreement shall comply with Section 314 of the Trust Indenture Act and
shall include:
(a) a statement that the individuals signing the Officers' Certificate
have read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate are based;
(c) a statement that, in the opinion of each such individual, he or she
has made such examination or investigation as, in such individual's
opinion, is necessary to enable such individual to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and (d) a statement as to whether, in the opinion of
such individuals, such condition or covenant has been complied with.
"Other Document" means any instrument or agreement constituting Trust Property,
other than the Debentures, specified in the Terms and Conditions.
"Other Document Event of Default" means an event of default under any Other
Document, if any, that is specified in the Terms and Conditions as an Other
Document Event of Default.
5
"Outstanding," with respect to any Securities, means, as of the date of
determination, all Securities theretofore executed and delivered under this
Agreement, except:
(a) Trust Preferred Securities theretofore cancelled by the Property
Trustee or delivered to the Property Trustee for cancellation or Common
Securities theretofore cancelled by an Administrative Trustee or
delivered to the Administrative Trustees for cancellation;
(b) Securities for whose payment, repayment or redemption money in the
necessary amount and currency has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such
Securities, provided that if such Securities are to be repaid or
redeemed, notice of such repayment or redemption has been duly given
pursuant to this Agreement;
(c) Securities which have been paid or in exchange for or in lieu of
which other securities have been executed and delivered pursuant to
this Agreement; and
(d) if the Securities are convertible or exchangeable into other
securities or other property, Securities converted or exchanged as
contemplated by this Agreement if such other securities have or other
property has been either (i) delivered to the Holders of such
Securities in accordance with this Agreement or (ii) deposited with and
are held by the Property Trustee or any Paying Agent in trust for the
Holders of such Securities in accordance with this Agreement, provided
in the case of this clause (ii) that any applicable notice of
conversion or exchange has been duly given to the Holders thereof
pursuant to this Agreement; provided, however, that in determining
whether the Holders of the requisite liquidation amount of outstanding
Trust Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Trust
Preferred Securities owned by the Sponsor or any Administrative Trustee
or any Affiliate of the Sponsor or any Administrative Trustee shall be
disregarded and deemed not to be outstanding, except that (i) in
determining whether any Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Trust Preferred Securities that such Trustee actually
knows to be so owned shall be so disregarded and (ii) the foregoing
shall not apply at any time when all of the outstanding Trust Preferred
Securities are owned by the Sponsor, one or more of the Trustees and/or
any such Affiliate. Trust 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 Trust Preferred
Securities and that the pledgee is not the Sponsor or any Affiliate of
the Sponsor.
"Paying Agent" has the meaning set forth in Section 7.2(a).
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
6
"Property Trustee" means the Trustee meeting the eligibility requirements set
forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Quorum" means, with respect to the Administrative Trustees, a majority of the
Administrative Trustees or, if there are only two Administrative Trustees, both
of them.
"Registrar" has the meaning set forth in Section 7.2(b).
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any officer
within the Corporate Trust Office of the Property Trustee with direct
responsibility for the Property Trustee's obligations under this Agreement and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities" means the Common Securities and the Trust Preferred Securities.
"Securities Guarantees" means the Common Securities Guarantee and the Trust
Preferred Securities Guarantee.
"Securities Act" means the Securities Act of 1933, as amended from time to time,
or any successor legislation.
"Sponsor" means
Apache Corporation, a Delaware corporation, or any successor
entity, in its capacity as sponsor of the Trust.
"State" means any of the 50 states in the United States or the District of
Columbia.
"Statutory 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, or any
successor legislation.
"Successor Delaware Trustee" has the meaning set forth in Section 5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.14(b)(i).
"Successor Property Trustee" has the meaning set forth in Section 3.8(f)(ii).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"10% in liquidation amount" with respect to either the Common Securities or the
Trust Preferred Securities means, except as provided elsewhere in this Agreement
or by the Trust Indenture Act,
7
10% or more of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus any accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all such outstanding Common Securities or Trust Preferred
Securities.
"Terms and Conditions" means the terms and conditions of the Common Securities
and the Trust Preferred Securities determined by the Sponsor and executed by the
Administrative Trustees in accordance with Section 7.1(b) and attached hereto as
Exhibit A.
"Trustee" or "Trustees" means each Person who has signed this Agreement as a
trustee, so long as such Person shall continue in office in accordance with the
terms hereof, and all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the provisions hereof, and
references herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended from
time to time, or any successor legislation.
"Trust Preferred Security" has the meaning set forth in Section 7.1(a).
"Trust Preferred Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate representing a Trust
Preferred Security, which shall be prepared by the Sponsor and a specimen of
which shall be substantially in the form attached hereto as Exhibit A-1.
"Trust Preferred Securities Guarantee" means the guarantee agreement dated as of
the date hereof executed and delivered by the Sponsor and JPMorgan Chase Bank,
as trustee, for the benefit of the Holders, as such agreement may be modified,
supplemented or amended from time to time.
"Trust Property" means (a) the Debentures, (b) any Other Documents, (c) any cash
on deposit in, or owing to, the Property Trust Account, and (d) all proceeds and
rights in respect of the foregoing or any other property and assets for the time
being held or deemed to be held by the Property Trustee pursuant to this
Agreement.
"Underwriting Agreement" means the underwriting agreement for the offering and
sale of Trust Preferred Securities, including any amendments or supplements
thereto.
8
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust Indenture
Act that are required to be part of this 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 and to the extent that any provision of this Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(d) Any application of the Trust Indenture Act to this Agreement shall
not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 2.2 Lists of Holders of Securities.
(a) In accordance with Section 312(a) of the Trust Indenture Act, the
Administrative Trustees, on behalf of the Trust, shall provide to the
Property Trustee:
(i) within 14 days after each March 15 and September 15 of
each year or such other dates as are set forth in the Terms
and Conditions, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such date,
provided that the Administrative Trustees, on behalf of the
Trust, shall not be obligated to provide such List of Holders
at any time that the Property Trustee is the Registrar or the
List of Holders does not differ from the most recent List of
Holders given to the Property Trustee by the Administrative
Trustees on behalf of the Trust; and
(ii) at any other time, within 30 days of receipt by the Trust
of a written request by the Property Trustee for a List of
Holders as of a date no more than 14 days before such List of
Holders is given to the Property Trustee. The Property Trustee
shall preserve, in as current a form as is reasonably
practicable, all information contained in the Lists of Holders
given to it or which it receives in the capacity as Paying
Agent or Registrar (if acting in such capacity), provided that
the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, commencing with the May 15 that first
occurs following the issuance of the Securities, the Property Trustee shall
provide to the Holders of the Trust Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act,
9
if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Property Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to Property Trustee.
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 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance With Conditions Precedent. Each of the
Sponsor and the Administrative Trustees, on behalf of the Trust, shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this 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) may
be given in the form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
(a) The Holders of not less than a Majority in liquidation amount of
Trust Preferred Securities may, by vote or written consent, on behalf
of the Holders of all of the Trust Preferred Securities, waive any past
Event of Default in respect of the Trust Preferred Securities and its
consequences, provided that, if the corresponding Debenture Event of
Default or Other Document Event of Default:
(i) is not waivable under the Debentures or any Other
Document, if any, as the case may be, the Event of Default
under this Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount of the holders of the Debentures or more
than a majority of other interests in such Other Document, as
the case may be (a "Super Majority"), to be waived under the
Indenture or such Other Document, as the case may be, the
Event of Default under this Agreement may only be waived by
the vote of the relevant Super Majority in liquidation amount
of Holders of the Trust Preferred Securities.
The foregoing provisions of this Section 2.6(a) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such
Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Agreement and the Trust Securities, as permitted by
the Trust Indenture Act. Upon such waiver, any such Debenture Event of
Default or Other Document Event of Default shall cease to exist, and
any Event of Default with respect to the Trust Preferred Securities
arising therefrom shall be deemed to have been cured, for every purpose
of this Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Trust Preferred
Securities or impair any right consequent thereon. Any waiver by the
Holders of the Trust Preferred Securities of an Event of Default with
respect to the Trust Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of
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any such Event of Default with respect to the Common Securities for all
purposes of this Agreement without any further act, vote, or consent of
the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Trust
Preferred Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee or to direct the exercise of any trust or power
conferred upon the Property Trustee, including the right to direct the
Property Trustee to exercise the remedies available to it as a holder
of the Debentures and any Other Documents; provided, however, that
(subject to the provisions of Section 3.9) the Property Trustee shall
have the right to decline to follow any such direction if the Property
Trustee shall determine that the action so directed would be unjustly
prejudicial to the Holders not taking part in such direction or if the
Property Trustee, being advised by competent legal counsel, determines
that the action or proceeding so directed may not lawfully be taken or
if the Property Trustee, in good faith, by its board of directors or
trustees, executive committee, or a trust committee of directors or
trustees, and/or Responsible Officers, shall determine that the action
or proceeding so directed would involve the Property Trustee in
personal liability.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote or consent, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to
the Common Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Debentures or Other Document,
except where the Holders of the Common Securities are deemed
to have waived such Event of Default under this Agreement as
provided elsewhere in this Section 2.6, the Event of Default
under this Agreement shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are
deemed to have waived such Event of Default under this
Agreement as provided below in this Section 2.6, such Event of
Default under this Agreement may only be waived by the vote or
consent of the Holders of at least the proportion in aggregate
liquidation amount of the Common Securities that the relevant
Super Majority represents of the aggregate principal amount of
the Debentures outstanding;
provided further, that, notwithstanding (i) or (ii) above, each Holder
of the Common Securities shall be deemed to have waived any such Event
of Default and all Events of Default with respect to the Common
Securities and its consequences if all Events of Default with respect
to the Trust Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived
or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will
have the right to direct the Property Trustee in accordance with the
terms of this Agreement and the Securities. The foregoing provisions of
this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316
(a)(1)(B) and of the Trust
11
Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this Agreement
and the Securities, as permitted by the Trust Indenture Act. Subject to
the foregoing provisions of this Section 2.6(b), upon such waiver, any
such Debenture Event of Default or Other Document Event of Default
shall cease to exist, and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been cured
for every purpose of this Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the
Common Securities or impair any right consequent thereon.
(c) A waiver of a Debenture Event of Default or Other Document Event of
Default by the Property Trustee at the direction of the Holders of the
Trust Preferred Securities constitutes a waiver of the corresponding
Event of Default with respect to the Trust Preferred Securities under
this Agreement. Any waiver of a Debenture Event of Default or Other
Document Event of Default by the Property Trustee at the direction of
the Holders of the Trust Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of the
corresponding Event of Default under this Agreement with respect to the
Common Securities for all purposes of this Agreement without further
act, vote or consent of the Holders of the Common Securities. The
foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this
Agreement and the Securities, as permitted by the Trust Indenture Act.
(d) The right of any Holder to receive payment of Distributions in
accordance with this Agreement and the terms of the Securities on or
after the respective payment dates therefore, or to institute suit for
the enforcement of any such payment on or after such payment dates,
shall not be impaired without the consent of each such Holder.
Section 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after a Responsible
Officer of the Property Trustee obtains actual knowledge of the
occurrence of a default, transmit by mail, first class postage prepaid,
to the Holders of the Securities, notices of all defaults known to the
Property Trustee other than defaults that have been cured or waived
before the giving of such notice (the term "defaults" for the purposes
of this Section 2.7(a) being hereby defined to include Debenture Events
of Default and Other Document Events of Default, if any, not including
any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided that, except for a
default in the payment of principal of (or premium, if any) or interest
on, or in the delivery of any cash, securities or other property in
exchange for or upon conversion or redemption of or otherwise in
accordance with the terms of, any Debenture or Other Document or the
Securities, the Property Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Property Trustee
in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
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(i) a default under Sections 501(1) and 501(2) of the
Indenture;
(ii) any failure to deliver any cash, securities or other
property in exchange for or upon conversion or redemption of
or otherwise in accordance with the terms of the Debentures or
Other Documents or the Securities; and
(iii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of
the Property Trustee shall have actual knowledge.
(c) The Sponsor and the Administrative Trustee shall file annually
within 30 days after May 15 of each year, commencing with the May 15
that first occurs following the issuance of the Securities, with the
Property Trustee in accordance with Section 314(a)(4) of the Trust
Indenture Act a certification as to whether or not they are in
compliance with all the conditions applicable to them under this
Agreement.
ARTICLE III
ORGANIZATION
Section 3.1 Name. The Trust is named "Apache Trust [I/II]," as such name may be
modified from time to time in accordance with the Statutory Trust Act. The
Administrative Trustees shall give prompt written notice of any change in the
name of the Trust to the Delaware Trustee, the Property Trustee and the Holders
of the Securities. The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Administrative Trustees.
Section 3.2 Office. The address of the principal office of the Trust is c/o
Apache Corporation, One Post Oak Central, 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000-0000. On ten Business Days prior written notice to the
Property Trustee and Holders of the Securities, the Administrative Trustees may
designate another principal office.
Section 3.3 Purposes. The exclusive purposes and functions of the Trust are and
the Trust shall have the power and authority (a) to issue and sell the
Securities and use the gross proceeds from such sale to acquire the Debentures
and any Other Documents specified in the Terms and Conditions, (b) to enter into
or hold each Other Document, if any, to be entered into or held by the Trust in
accordance with the Terms and Conditions and (c) to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, execute mortgages or otherwise undertake (or permit to be undertaken)
any activity that would cause the Trust not to be classified for U.S. federal
income tax purposes as a grantor trust. It is the intent of the parties to this
Agreement for the Trust to be classified as a grantor trust for U.S. federal
income tax purposes under Subpart E of Subchapter J of the Code, pursuant to
which the owners of the Trust Preferred Securities and the Common Securities
will be the owners of the Trust for U.S. federal income tax purposes, and such
owners will include directly in their gross income the income, gain, deduction
or loss of the Trust as if the Trust did not exist. By the acceptance of this
Agreement neither the Trustees nor the Sponsor or the Holders of the Trust
Preferred Securities or Common Securities will take any position for U.S.
Federal income tax purposes, or permit the Trust to make any election, which is
contrary to the classification of the Trust as a grantor trust.
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Section 3.4 Authority. Subject to the limitations provided in this Agreement and
to the specific duties of the Property Trustee, the Administrative Trustees
shall have exclusive and complete authority to carry out the purposes of the
Trust. An action taken by the Administrative Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Property Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Agreement.
Section 3.5 Title to Property of the Trust. Except as provided in Section 3.8
with respect to the Trust Property and the Property Trustee Account or as
otherwise provided in this Agreement, legal title to all assets of the Trust
shall be vested in the Trust. A Holder shall not have legal title to any part of
the assets of the Trust, but shall have an undivided beneficial interest in the
assets of the Trust.
Section 3.6 Powers and Duties of the Administrative Trustees. The Administrative
Trustees shall have the power, duty and authority, which shall be exclusive
except as otherwise set forth herein, and are hereby authorized and directed to
cause the Trust to engage in the following activities:
(a) execute, deliver, issue and sell the Trust Preferred Securities and
the Common Securities in accordance with this Agreement; provided,
however, that the Trust may issue no more than one series of Trust
Preferred Securities and no more than one series of Common Securities,
and, provided further, that there shall be no interests in the Trust
other than the Securities, and the issuance of Securities shall be
limited to a simultaneous issuance of both Trust Preferred Securities
and Common Securities on each Closing Date;
(b) in connection with the issue and sale of the Trust Preferred
Securities:
(i) assist in filing with the Commission any registration
statement and any prospectus relating to the registration
statement on Form S-3 prepared by the Sponsor, including any
amendments or supplements thereto, pertaining to the Trust
Preferred Securities and to take any other action relating to
the registration and sale of the Trust Preferred Securities
under federal and state securities laws;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary
in order to qualify or register all or part of the Trust
Preferred Securities in any State in which the Sponsor has
determined to qualify or register such Trust Preferred
Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's National
Market for listing or quotation of any Trust Preferred
Securities;
(iv) execute and file with the Commission any registration
statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor, relating to the
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registration of the Trust Preferred Securities under Section
12(b) or 12(g) of the Exchange Act;
(v) execute and enter into and deliver the Underwriting
Agreement providing for the sale of the Trust Preferred
Securities;
(vi) execute and deliver letters, documents or instruments
with DTC and other Clearing Agencies relating to the Trust
Preferred Securities;
(vii) execute the Terms and Conditions and attach them to this
Agreement; and
(viii) execute, enter into or file any other instrument,
agreement, certificate or other document negotiated or
prepared by the Sponsor on behalf of the Trust, including any
Other Document to be entered into or held by the Trust, and to
take such other action, in each case as the Administrative
Trustees or any of them deem necessary or incidental (and not
otherwise covered by the power of the other Trustees hereunder
or under the Securities), in connection with the issuance, the
sale or the terms of any Securities and the investment by the
Trust in the Trust Property, including any remarketing,
auction or similar agreements.
(c) acquire the Debentures and any Other Documents with the proceeds of
the sale of the Trust Preferred Securities and the Common Securities;
provided, however, that the Administrative Trustees shall cause legal
title to the Debentures and any Other Documents to be acquired by the
Trust on a Closing Date to be held of record in the name of the
Property Trustee for the benefit of the Trust and the Holders of the
Trust Preferred Securities and the Holders of Common Securities;
(d) give the Sponsor and the Property Trustee prompt written notice of
the occurrence of any event that, in accordance with this Agreement,
may require that a notice be sent to Holders, including events that may
result in an Event of Default, or any redemption, conversion or
exchange of or deferral of distributions on the Securities;
(e) establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture
Act, Distributions, voting rights, any repayments, any redemptions, any
conversions and any exchanges, and to issue relevant notices to the
Holders of Trust Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) take all actions and perform such duties as may be required of the
Administrative Trustees pursuant to the terms of the Securities and
this Agreement;
(g) to the fullest extent permitted by law, bring or defend, pay,
collect, compromise, arbitrate, resort to legal action, or otherwise
adjust claims or demands of or against the Trust ("Legal Action"),
unless pursuant to Section 3.8(e) the Property Trustee has the
exclusive power to bring such Legal Action;
15
(h) employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(i) cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be
executed by any Administrative Trustee;
(k) incur expenses that are necessary, appropriate, convenient or
incidental to carry out any of the purposes of the Trust;
(l) act as, or appoint another Person to act as, Registrar and transfer
agent for the Securities;
(m) take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory trust under the laws
of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders
of the Trust Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(n) take any action, not inconsistent with this Agreement or with
applicable law, that the Administrative Trustees determine in their
discretion to be necessary or incidental in carrying out the activities
of the Trust, including:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(ii) causing the Trust to be classified for U.S. Federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture
Issuer for U.S. Federal income tax purposes,
provided, in each case, that such action does not adversely affect the
interests of Holders;
(o) take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed on behalf of the Trust; and
(p) execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
which the Administrative Trustees deem necessary or incidental to the
foregoing.
The Administrative Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes of the Trust set
out in Section 3.3. None of the
16
Administrative Trustees shall take any action that is inconsistent with the
purposes of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8. No permissive power or authority available to the Administrative Trustees
shall be construed to be a duty. Any expenses incurred by the Administrative
Trustees pursuant to this Section 3.6 shall be reimbursed by the Sponsor.
The Administrative Trustees shall take all actions on behalf of the
Trust that are not specifically required by this Agreement to be taken by any
other Trustee.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees shall not cause the Trust to,
engage in any activity other than as required or authorized by this
Agreement. In particular, the Trust shall not and the Trustees shall
not cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Debentures or other Trust Property, but shall distribute all
such proceeds to Holders of Securities pursuant to the terms
of this Agreement and of the Securities;
(ii) acquire or vary any assets other than as expressly
provided herein;
(iii) possess Trust Property for other than a Trust purpose;
(iv) (iv) make any loans or incur any indebtedness for
borrowed money, other than loans represented by the Debentures
or other Trust Property;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any
way whatsoever;
(vi) 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 provided in
this Agreement;
(vii) take or consent to any action that would result in the
placement of a lien on any Trust Property;
(viii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than
the Securities; or
(ix) other than as provided in this Agreement,
(A) direct or exercise any remedy, trust or power
with respect to the Debentures, or any other
instrument or agreement constituting Trust Property,
(B) waive any past default that is waivable under the
Indenture or any Other Document,
17
(C) exercise any right to rescind or annul any
declaration that the principal of or other amounts
payable or other property deliverable under the
Debentures or amounts payable or other property
deliverable under any Other Document shall be due and
payable, or
(D) consent to any amendment, modification or
termination of the Indenture or the Debentures or any
Other Document, in the case of each of clauses (A)
through (D), (x) without the approval of a Majority
in liquidation amount with respect to the Securities
or, where a consent under the Indenture or Other
Document, as the case may be, would require the
consent of each holder of Debentures or other
interests, as the case may be, affected thereby, of
each Holder of Securities, and (y) unless the Trust
shall have received an opinion of nationally
recognized independent tax counsel to the effect that
the Trust will not, as a result of such action, fail
to be classified as a grantor trust for such
purposes.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Trust Property shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of
the Trust and the Holders of the Securities. The right, title and
interest of the Property Trustee to the Trust Property shall vest
automatically in each Person who may hereafter be appointed as Property
Trustee in accordance with Section 5.6. Such vesting and cessation of
title shall be effective whether or not conveyancing documents with
regard to the Trust Property have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Trust Property to the Administrative Trustees or to the
Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee) or, except in accordance with the provisions of this Agreement
and the Securities, any other Person.
(c) The Property Trustee shall:
(i) establish and maintain one or more segregated non-interest
bearing trust accounts (collectively, the "Property Trustee
Account") in the name of and under the exclusive control of
the Property Trustee on behalf of the Trust and the Holders
and, upon the receipt of funds in respect of the Trust
Property, deposit such funds into the Property Trust Account
and, upon the receipt of funds distributed to the Property
Trustee in respect of the Trust Property held by the Property
Trustee, deposit such funds into the Property Trustee Account,
and make distributions of such funds out of the Property Trust
Account to the Holders of the Trust Preferred Securities and
the Holders of the Common Securities in accordance with the
terms of this Agreement and the Securities. Funds in the
Property Trustee Account shall be held uninvested until
disbursed in accordance with this Agreement and the
Securities. The Property Trustee Account shall be one or more
accounts maintained with one or more banking institutions
(which may include the Property Trustee if it qualifies
hereunder) the rating on whose
18
long-term unsecured indebtedness is rated at least "A" or
above by a "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) upon receipt of any Trust Property on each Closing Date
and the receipt of any property other than funds distributed
to the Property Trustee in respect of Trust Property held by
the Property Trustee, hold such other property in safe keeping
and make distributions of such other property to the Holders
of the Trust Preferred Securities and the Holders of the
Common Securities in accordance with the terms of this
Agreement and the Securities; and
(iii) engage in such ministerial activities as shall be
necessary or incidental to hold the Trust Property in
accordance with the provisions hereof and to effect
distributions on and any redemption, repayment, conversion or
exchange of the Trust Preferred Securities or the Common
Securities and the distribution of all or any part of the
Trust Property to Holders in liquidation of the Trust or
otherwise, in each case in accordance with the terms of this
Agreement and the Securities.
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the
terms of the Securities and this Agreement.
(e) Subject to Section 3.9(a), the Property Trustee shall take any
Legal Action which arises out of or in connection with an Event of
Default of which a Responsible Officer of the Property Trustee has
actual knowledge or the Property Trustee's duties and obligations under
this Agreement, the Statutory Trust Act or the Trust Indenture Act;
provided, however, that if the Property Trustee fails to enforce its
rights under this Agreement and the Debentures or any Other Document
after a Holder of Trust Preferred Securities has made a written
request, such Holder of Trust Preferred Securities may, to the fullest
extent permitted by applicable law and subject to the terms of this
Agreement and the Indenture, institute a legal proceeding against the
Debenture Issuer[, the Debenture Guarantor] or any obligor under any
Other Document, as the case may be, without first instituting any legal
proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and
is continuing and such event is attributable to (i) the failure of the
Debenture Issuer [or the Debenture Guarantor, as the case may be,] to
pay interest or any premium on or principal of the Debentures on the
date such interest or principal is otherwise payable (including, in the
case of repayment or redemption, on the repayment or redemption date)
and, if applicable, not during an authorized Extension Period (as
defined in the Terms and Conditions) or, if the Debentures are
exchangeable or convertible, the failure of the Debenture Issuer to
convert or exchange the Debentures into or for other property in
accordance with the terms thereof, or (ii) the failure of any obligor
under any Other Document to pay or deliver cash, securities or other
property in accordance with the terms of such Other Document, then, in
the case of (i) and (ii), a Holder of Trust Preferred Securities may
directly institute a proceeding (a "Direct Action") for enforcement of
payment or delivery to such Holder of the principal of or interest on
or other property deliverable upon the exchange or conversion of
Debentures having a
19
principal amount equal to the aggregate liquidation amount of the Trust
Preferred Securities of such holder on or after the due date specified
in the Debentures or any cash, securities or other property that is
required to be paid or delivered pursuant to such Other Document on or
after the due date therefor equal to the percentage of outstanding
securities represented by such Holder's Securities. In connection with
such Direct Action, the rights of the Holders of Common Securities will
be subordinated to the rights of such Holders of Trust Preferred
Securities. Except as provided in the preceding sentences, the Holders
of Trust Preferred Securities will not be able to exercise directly any
other remedy available to the holders of the Debentures or Other
Documents.
(f) The Property Trustee shall continue to serve as a Trustee until
either:
(i) the Trust has been completely dissolved and wound up and
the proceeds of the liquidation distributed to the Holders of
Securities and the Trust is terminated, in accordance with the
terms of the Securities and this Agreement; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6 (a
"Successor Property Trustee").
(g) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of the Trust as holder of Debentures
under the Indenture and as beneficiary of or party to any Other
Document and, if an Event of Default actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce
the rights of the Trust as holder of the Debentures and as beneficiary
of or party to any Other Document subject, in each case, to the rights
of the Holders pursuant to the terms of the Securities and this
Agreement.
(h) The Property Trustee shall be authorized to undertake any actions
set forth in Section 317(a) of the Trust Indenture Act.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 3.6.
(j) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional
Paying Agents and to make distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all
Securities. Any such additional Paying Agent may be removed by the
Property Trustee, at any time, so long as the Property Trustee remains
as Paying Agent and a successor Paying Agent or additional Paying
Agents may be (but are not required to be) appointed at any time by the
Property Trustee.
(k) The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Property Trustee
shall not take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
20
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of Default
and after the curing or waiver of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Agreement and no implied covenants shall
be read into this Agreement against the Property Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property
Trustee has actual knowledge, the Property Trustee shall exercise such
of the rights and powers vested in it by this Agreement, and use the
same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) No provision of this Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own
negligent failure to act, its bad faith or its own willful misconduct,
except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express
provisions of this Agreement and the Property Trustee
shall not be liable except for the performance of
such duties and obligations as are specifically set
forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against
the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Property Trustee and conforming to the
requirements of this Agreement; provided, that in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Property Trustee, the Property
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than
a Majority in liquidation amount of the Securities relating to
the time, method and place of conducting any proceeding for
any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under
this Agreement;
21
(iv) no provision of this Agreement shall require the Property
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured
to it under the terms of this Agreement or if indemnity
reasonably satisfactory to the Property Trustee against such
risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust
Property and the Property Trustee Account shall be to deal
with such property in a manner that is similar to the manner
in which the Property Trustee deals with similar property for
its fiduciary accounts generally, subject to the protections
and limitations on liability afforded to the Property Trustee
under this Agreement, the Statutory Trust Act and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or
sufficiency of the Trust Property or the payment of any taxes
or assessments levied thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may
otherwise agree in writing with the Sponsor; money held by the
Property Trustee need not be segregated from other funds held
by it except in relation to the Property Trustee Account
maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or
the Sponsor with their respective duties under this Agreement,
nor shall the Property Trustee be liable for any default or
misconduct of the Administrative Trustees or the Sponsor.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Agreement shall be sufficiently
evidenced by a Direction or an Officers' Certificate;
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(iii) whenever in the administration of this Agreement, the
Property Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Property Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of
negligence or bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including
any financing or continuation statement or any filing under
tax or securities laws) or any rerecording, refiling or
registration thereof;
(v) the Property Trustee may consult with competent legal
counsel or other competent experts and the advice or written
opinion of such counsel and experts with respect to legal
matters or advice within the scope of such legal counsel's or
experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be
counsel to the Sponsor or any of its Affiliates, and may
include any of its employees; and the Property Trustee shall
have the right at any time to seek instructions concerning the
administration of this Agreement from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement at the request or direction of any Holder, unless
(A) such Holder shall have provided to the Property Trustee
security and indemnity, reasonably satisfactory to the
Property Trustee, against the reasonable costs, expenses
(including reasonable attorneys' fees and expenses and the
reasonable expenses of the Property Trustee's agents, nominees
or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Property
Trustee and (B) the Property Trustee has obtained the legal
opinions, if any, required by the applicable provisions of
this Agreement, provided that nothing contained in this
Section 3.10(a)(vi) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Agreement;
(vii) the Property Trustee shall be under no obligation to
conduct an investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Property Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents, custodians, nominees or
attorneys, and the Property Trustee shall not be responsible
for any
23
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the
Securities, and the signature of the Property Trustee or its
agents alone shall be sufficient and effective to perform any
such action, and no third party shall be required to inquire
as to the authority of the Property Trustee to so act or as to
its compliance with any of the terms and provisions of this
Agreement, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Agreement the
Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Property Trustee
(A) may request instructions from the Holders (which
instructions may only be given by the Holders of the
same proportion in liquidation amount of the
Securities as would be entitled to direct the
Property Trustee under the terms of the Securities in
respect of such remedy, right or action)
(B) may refrain from enforcing such remedy or right
or taking such other action until such instructions
are received, and
(C) shall be protected in conclusively relying on or
acting in accordance with such instructions, provided
that the Property Trustee shall not take any action
unless it shall have obtained the legal opinions
required by the applicable provisions of this
Agreement;
(xi) except as otherwise expressly provided by this Agreement,
the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Agreement; and
(xii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers
conferred upon it by this Agreement.
(b) No provision of this Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, or to exercise any
such right, power, duty or obligation. No permissive power or authority
available to the Property Trustee shall be construed to be a duty.
Section 3.11 Delaware Trustee. Notwithstanding any other provision of this
Agreement other than Section 5.2, 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 Trustees (except as required
24
under the Statutory Trust Act) described in this Agreement. Except as set forth
in Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of Section 3807 of the Statutory Trust
Act. In the event that the Delaware Trustee shall at any time be required to
take any action or perform any duty hereunder, the Delaware Trustee shall be
entitled to the benefits of Section 3.9(b)(ii) and (viii) and Section 3.10. No
implied covenants or obligations shall be read into this Agreement against the
Delaware Trustee.
Section 3.12 Not Responsible for Recitals or Issuance of Securities. The
recitals contained in this Agreement and the Securities shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Agreement or the
Securities.
Section 3.13 Duration of Trust. The Trust, unless dissolved pursuant to the
provisions hereof, shall [dissolve on _____________________] [have perpetual
existence].
Section 3.14 Mergers.
(a) The Trust may not consolidate, amalgamate, merge or convert with or
into, or be replaced by, or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to, any
Person, except for the sole purpose of changing its domicile and as set
forth in Section 3.14(b) and (c).
(b) Subject to Section 3.14(a), the Trust may, at the request of the
Sponsor, with the consent of the Administrative Trustees or, if there
are more than two, a majority of the Administrative Trustees and
without the consent of the Holders of the Trust Preferred Securities,
the Delaware Trustee or the Property Trustee, consolidate, amalgamate,
merge or convert with or into, or be replaced by a trust organized as
such under the laws of any State; provided that:
(i) the successor entity (the "Successor Entity") expressly
assumes all of the obligations of the Trust under any
agreement to which the Trust is a party and either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Trust Preferred Securities
other securities having substantially the same terms
as the Trust Preferred Securities (the "Successor
Trust Preferred Securities"), so long as the
Successor Trust Preferred Securities rank the same as
the Trust Preferred Securities rank with respect to
distributions of Trust Property and payments upon
liquidation, redemption, repayment and otherwise and
substitutes for the Common Securities other
securities having substantially the same terms as the
Common Securities (the "Successor Common Securities"
and, together with the Successor Trust Preferred
Securities, the "Successor Securities"), so long as
the Successor Common Securities rank the same as the
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Common Securities rank with respect to distributions
of Trust Property and payments upon liquidation,
redemption, repayment and otherwise;
(ii) the Successor Entity has a trustee that possesses
substantially the same powers and duties as the Property
Trustee;
(iii) the Trust Preferred Securities or any Successor
Securities will be listed, quoted or included for trading, or
any Successor Securities will be listed, quoted or included
for trading upon notification of issuance if applicable, on
any national securities exchange or with another system on
which the Trust Preferred Securities are then listed, quoted
or included for trading;
(iv) such merger, conversion, consolidation, amalgamation or
replacement does not cause the Trust Preferred Securities
(including any Successor Securities) to be downgraded or
placed under surveillance for review for a possible downgrade
by any nationally recognized statistical rating organization;
(v) such merger, conversion, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities and any Successor Trust Preferred Common
Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation or replacement, the Sponsor has received an
opinion of a nationally recognized independent counsel to the
Trust experienced in such matters to the effect that:
(A) such merger, conversion, consolidation,
amalgamation or replacement does not adversely affect
the rights, preferences and privileges of the Holders
of the Securities (including any Successor
Securities) in any material respect;
(B) following such merger, conversion, consolidation,
amalgamation or replacement, neither the Trust nor
the Successor Entity will be required to register as
an Investment Company; and
(C) following such merger, conversion, consolidation,
amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a
grantor trust for U.S. Federal income tax purposes;
(viii) the Sponsor, directly or indirectly, owns all of the
Successor Common Securities and guarantees the obligations of
such Successor Entity under the Successor Trust Preferred
Securities at least to the extent provided by the Securities
Guarantees; and
26
(ix) the Property Trustee has received an Officers'
Certificate from the Sponsor and an opinion of counsel, each
to the effect that all conditions precedent to the transaction
as set forth in this Agreement have been satisfied.
(c) Notwithstanding Section 3.14(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge or convert with or into, or be replaced
by any other Person or permit any other Person to consolidate,
amalgamate or merge with or into, or replace it if such consolidation,
amalgamation, merger, conversion, or replacement would cause the Trust
or Successor Entity to be classified as other than a grantor trust for
U.S. Federal income tax purposes.
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities. On each Closing Date, the
Sponsor shall purchase all of the Common Securities issued by the Trust, in an
amount at least equal to 3.0% of the Securities of the Trust issued on such
Closing Date, at the same time as the Trust Preferred Securities are sold.
Section 4.2 Covenants of the Sponsor. For so long as the Trust Preferred
Securities remain outstanding, the Sponsor shall:
(a) cause the Trust to remain a statutory trust and not to voluntarily
dissolve, wind up, liquidate, or terminate, except as permitted by this
Agreement;
(b) use its commercially reasonable efforts to ensure that the Trust
will not be
(i) an Investment Company or
(ii) classified as other than a grantor trust for U.S. Federal
income tax purposes.
Section 4.3 Rights and Responsibilities of the Sponsor. In connection with the
issue and sale of the Trust Preferred Securities and so long as the Securities
are outstanding, the Sponsor shall have the right and responsibility (which
shall be exclusive except as otherwise set forth herein) to engage in the
following activities:
(a) determine the Terms and Conditions;
(b) prepare, execute and file on behalf of the Trust with the
Commission a registration statement on Form S-3 and any prospectus or
prospectus supplement relating to such registration statement in
relation to the Trust Preferred Securities, including any amendments
thereto;
(c) if deemed necessary or advisable by the Sponsor, determine the
States in which to take appropriate action to qualify or register for
sale all or part of the Trust Preferred Securities and to do any and
all such acts on behalf of the Trust, and prepare, execute and file any
documents on behalf of the Trust as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
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(d) if deemed necessary or advisable by the Sponsor, prepare, execute
and file on behalf of the Trust 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 Trust Preferred
Securities;
(e) if necessary, prepare, execute and file on behalf of the Trust with
the Commission, a registration statement on Form 8-A relating to the
registration of the Trust Preferred Securities under Section 12(b) or
12(g) of the Exchange Act, including any amendments thereto; and
(f) negotiate the Underwriting Agreement and any other instrument or
agreement which, in the opinion of the Sponsor, the Trust should be a
party to, bound by or a beneficiary of, including any remarketing,
auction or exchange agreement.
Section 4.4 Right to Proceed.
(a) The Sponsor acknowledges the rights of Holders to institute a
Direct Action as set forth in Section 3.8(e) hereto.
Section 4.5 Expenses. In connection with the offering, sale and issuance of the
Debentures or Other Documents to the Property Trustee and in connection with the
sale of the Securities by the Trust, the Sponsor shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures or Other Documents, including commissions to
the underwriters 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 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 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
(including any amounts payable under Article X of this Agreement), 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 Agents,
Registrars, transfer agents, 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;
(c) be primarily liable for any indemnification obligations arising
under Section 10.4 with respect to this Agreement; and
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(d) pay any and all taxes (other than United 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 Sponsor's obligations under this Section 4.5 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 Sponsor's obligations
under this Section 4.5 directly against the Sponsor and the Sponsor irrevocably
waives any right or remedy to require that any such Creditor take any action
against the Trust or any other Person before proceeding against the Sponsor. The
Sponsor agrees to execute such additional agreements as may be necessary or
desirable in order to give full effect to the provisions of this Section 4.5.
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees. The number of Trustees initially shall be four,
and:
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may be
increased or decreased by the Holders of a Majority in liquidation
amount of the Common Securities; provided, however, that, the number of
Trustees shall in no event be less than two, provided further that (1)
one Trustee shall meet the requirements of Section 5.2(a) or (b); (2)
there shall be at least one Trustee who is an employee or officer of,
or is affiliated with the Sponsor (an "Administrative Trustee"); and
(3) one Trustee shall be the Property Trustee for so long as this
Agreement is required to qualify as an indenture under the Trust
Indenture Act, and such Property Trustee may also serve as Delaware
Trustee if it meets the applicable requirements.
Section 5.2 Delaware Trustee. If required by the Statutory Trust Act, one
Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided that, if the Property Trustee has its
principal place of business in the State of Delaware and otherwise
meets the requirements of applicable law, then the Property Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no
application.
(c) The initial Delaware Trustee shall be:
Chase Manhattan Bank USA, National Association
c/o JPMorgan Chase
Attn: Institutional Trust Services
000 Xxxxxxx Xxxxxxxxxx Xxxx, XXX0
Xxxxxx, Xxxxxxxx 00000
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Section 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as Property
Trustee for so long as this Agreement is required to qualify as an
Indenture under the Trust Indenture Act, which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such
laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for
the purposes of this Section 5.3(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture
Act, the Property Trustee and the Holder of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
(d) The Trust Preferred Securities Guarantee and the Indenture
[Describe others if applicable] shall be deemed to be specifically
described in this Agreement and the Indenture for purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
(e) The initial Property Trustee shall be:
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services
Section 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally. Each Administrative Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
30
Section 5.5 Administrative Trustees. The initial Administrative Trustees shall
be:
Xxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
(a) Except as otherwise expressly set forth in this Agreement and
except if a meeting of the Administrative Trustees is called in
accordance with Section 5.9 with respect to any matter over which the
Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of,
any one such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees in
accordance with Section 5.9, and except as otherwise required by the
Statutory Trust Act or applicable law, any Administrative Trustee is
authorized to execute on behalf of the Trust any documents which the
Administrative Trustees have the power and authority to cause the Trust
to execute pursuant to Section 3.6.
Section 5.6 Appointment; Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) after the issuance of any Securities, by the Holders of a
Majority in liquidation amount of the Common Securities voting
as a class at a meeting of the Holders of the Common
Securities unless an Event of Default shall have occurred and
be continuing, and
(iii) if an Event of Default shall have occurred and be
continuing, after the issuance of the Securities, with respect
to: (A) the Administrative Trustees, by vote or written
consent of the Holders of a Majority in liquidation amount of
the Common Securities acting separately as a class; and (B)
the Property Trustee and the Delaware Trustee, by vote or
written consent of the Holders of a Majority in liquidation
amount of the Trust Preferred Securities, acting separately as
a class.
(b) (i) The Property Trustee shall not be removed in accordance with
Section 5.6(a) until a Successor Property Trustee possessing the
qualifications to act as Property Trustee under Sections 5.2 and 5.3
has been appointed and has accepted such appointment by written
instrument executed by such Successor Property Trustee and delivered to
the Administrative Trustees, the Delaware Trustee (if the removed
Property Trustee is not also the Delaware Trustee) and the Sponsor.
(ii) The Delaware Trustee shall not be removed in accordance
with Section 5.6(a) until a successor possessing the qualifications to
act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor
Delaware Trustee") has been appointed and has accepted such appointment
by written instrument executed by such Successor Delaware Trustee and
31
delivered to the Administrative Trustees, the Property Trustee (if the
removed Delaware Trustee is not also the Property Trustee) and the
Sponsor.
(c) A Trustee appointed to office shall hold office until such
Trustee's successor shall have been appointed or until such Trustee's
death, bankruptcy, dissolution, termination, removal or resignation.
Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the
Trustee and delivered to the other Trustees, the Sponsor, the Trust
and, after an Event of Default has occurred and is continuing, the
Holders of Trust Preferred Securities, which resignation shall take
effect upon such delivery or upon such later date as is specified
therein; provided, however, that:
(i) no such resignation of the Property Trustee shall be
effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Trust, the Sponsor, the
Delaware Trustee, the resigning Property Trustee and,
after an Event of Default has occurred and is
continuing, the Holders of Trust Preferred
Securities; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the Holders of the Securities and the
Trust is terminated pursuant to the terms of this
Agreement and the Securities; and
(ii) no such resignation of the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to
the Trust, the Sponsor, the Property Trustee, the resigning
Delaware Trustee and, after an Event of Default has occurred
and is continuing, the Holders of Trust Preferred Securities.
(d) The Holders of the Common Securities or, if an Event of Default has
occurred and is continuing after the issuance of any Securities, the
Holders of Trust Preferred Securities shall use all reasonable efforts
to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this
Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the other Trustees, the
Sponsor, the Trust and, after an Event of Default has occurred and is
continuing, the Holders of the Trust Preferred Securities of an
instrument of resignation, the resigning Property Trustee or Delaware
Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee. Such court may thereupon, after prescribing
such
32
notice, if any, as it may deem proper, appoint a Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(g) At the time of the resignation or removal of the Property Trustee
or the Delaware Trustee, the Sponsor shall pay to such Trustee any
amounts that may be owed to such Trustee pursuant to Section 10.4.
Section 5.7 Vacancies Among Trustees. If a Trustee ceases to hold office for any
reason and the number of Trustees is not reduced pursuant to Section 5.1, or if
the number of Trustees is increased pursuant to Section 5.1, a vacancy shall
occur. A resolution certifying the existence of such vacancy by the
Administrative Trustees or, if there are more than two Administrative Trustees,
a majority of the Administrative Trustees shall be conclusive evidence of the
existence of such vacancy. The vacancy shall be filled with a Trustee appointed
in accordance with Section 5.6.
Section 5.8 Effect of Vacancies. The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the
duties of a Trustee shall not operate to dissolve, terminate or annul the Trust.
Whenever a vacancy among the Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee in accordance
with Section 5.6, the Administrative Trustees in office, regardless of their
number, shall have all the powers granted to the Administrative Trustees and
shall discharge all the duties imposed upon the Administrative Trustees by this
Agreement.
Section 5.9 Meetings. If there is more than one Administrative Trustee, meetings
of the Administrative Trustees shall be held from time to time upon the call of
any Administrative Trustee. Regular meetings of the Administrative Trustees may
be held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Agreement, any action of the Administrative Trustees
may be taken at (i) a meeting by vote of a majority of the Administrative
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or (ii) without a
meeting and without prior notice by the unanimous written consent of the
Administrative Trustees. In the event there is only one Administrative Trustee,
any and all action of such Administrative Trustee shall be evidenced by a
written consent of such Administrative Trustee.
33
Section 5.10 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 3.6.
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust the doing
of such things and the execution of such instruments either in the name
of the Trust or the names of the Administrative Trustees or otherwise
as the Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to Business. Any
Person into which the Property Trustee or the Delaware Trustee, as the case may
be, may be merged or converted or with which either may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Property Trustee or the Delaware Trustee, as the case may be, shall be a party,
or any Person succeeding to all or substantially all the corporate trust
business of the Property Trustee or the Delaware Trustee, as the case may be,
shall be the successor of the Property Trustee or the Delaware Trustee, as the
case may be, hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided however, that
such successor shall promptly notify the Sponsor (except that a Successor
Delaware Trustee shall file an appropriate amendment to the Certificate of Trust
of the Trust, if required by the Statutory Trust Act).
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions. If and to the extent that the Trust receives income
on any Debenture or pursuant to any Other Document whether in cash, securities
or other property as proceeds from the redemption, repayment, conversion,
exchange, maturity or other disposition of any Debenture or pursuant to any
Other Document (including any interest or premium on or the principal of the
Debentures, any securities or other property received in exchange or upon
conversion of the Debentures, or any cash, securities or other property received
under any Other Document), then, unless otherwise specified in this Agreement,
the Property Trustee shall distribute such income, cash, securities and other
property to the Holders of the Securities in accordance with the terms of the
Securities they hold as set forth in this Agreement, including the Terms and
Conditions. The Property Trustee shall make the distributions on the Trust
Preferred Securities and the Common Securities in accordance with the relative
rights, preferences and privileges that apply to each of those classes of
Securities as set forth in this Agreement.
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ARTICLE VII
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities.
(a) The Administrative Trustees shall, on behalf of the Trust, issue
one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth
in the Terms and Conditions (the "Trust Preferred Securities") and one
class of common securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set forth in the
Terms and Conditions (the "Common Securities"). The Trust shall issue
no securities or other interests in the assets of the Trust other than
the Trust Preferred Securities and the Common Securities.
(b) The terms of the Securities shall be established by the Sponsor and
set forth in the Terms and Conditions. The Terms and Conditions shall
be executed by each of the Administrative Trustees, attached to this
Agreement as Exhibit A and incorporated herein by reference, and shall
set forth the following to the extent not provided by, or in lieu or
modification of, the other provisions of this Agreement:
(i) the designation of the Trust Preferred Securities and the
designation of the Common Securities;
(ii) any limit upon the number and/or aggregate liquidation
amount of the Trust Preferred Securities or the Common
Securities to be executed and delivered under this Agreement
(except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu
of, other Securities of such class pursuant to Section 9.2,
9.7 or 9.8, upon repayment or redemption in part of any
Security or upon surrender in part of any Security for
conversion or exchange into other securities pursuant to its
terms);
(iii) the amounts payable out of the assets of the Trust to,
and any other rights of the Holders upon, the liquidation of
the Trust and any provisions for the dissolution and
liquidation of the Trust, including the obligation, if any, of
the Sponsor, the Trust or any other party to liquidate the
Trust and any terms and conditions of such liquidation;
(iv) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the
liquidation amount and premium, if any, of the Securities are
distributable;
(v) the rate or rates at which income on the Trust Property
shall be distributed to Holders, or the method or methods, if
any, by which such rate or rates are to be determined, the
date or dates, if any, from which such income shall accrue or
the method or methods, if any, by which such date or dates are
to be determined, the date or dates, if any, on which such
income shall be payable, including any deferral provisions,
and the record date or dates, if any, for the income payable
on the Securities on any such income payment date, the notice,
if any, to Holders regarding the determination of income on a
floating rate Security and the manner of giving such notice,
and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
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(vi) whether the Distributions on the Securities will be
cumulative and, if so, the dates from which and upon which
distributions will accumulate and be payable;
(vii) whether, in addition to or other than the Borough of
Manhattan, The City of New York, the place or places where the
distributions on the Securities may be made, the Securities
may be surrendered for registration of transfer, exchange,
redemption, repayment, conversion or upon maturity, and
notices or demands to or upon the Trust in respect of the
Securities and this Agreement may be served;
(viii) whether the Trust is obligated or entitled to redeem or
purchase any of such Securities at its option, pursuant to any
sinking fund or analogous provision or at the option of any
Holder thereof or otherwise, and, if so, the date or dates on
which, the period or periods within which, the price or prices
at which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and any provisions for the
remarketing, auction or other secondary sales of Securities so
redeemed or purchased;
(ix) the denominations in which the Securities shall be
issuable if other than denominations of $1,000 and any
integral multiple;
(x) whether the Securities will be convertible into and/or
exchangeable for other securities or property or both, and if
so, the terms and conditions upon which the Securities will be
so convertible or exchangeable;
(xi) any voting rights granted to the Holders of the Trust
Preferred Securities or the Common Securities in addition to
or in lieu of the voting rights set forth elsewhere in this
Agreement;
(xii) if other than U.S. dollars, the currency in which cash
distributions on the Securities shall be payable;
(xiii) if cash distributions with respect to the Securities
are to be payable, at the election of the Trust or a Holder
thereof or otherwise, in a currency other than that in which
the Securities are stated to be payable, the date or dates on
which, the period or periods within which, and the other terms
and conditions upon which, such election may be made, and the
time and manner of determining the exchange rate between the
currency in which the Securities are stated to be payable and
the currency in which the Securities or any of them are to be
paid pursuant to such election;
(xiv) whether any distributions may be determined with
reference to an index, formula or other method or methods
(which index, formula or method or methods may be based,
without limitation, on one or more currencies, commodities,
equity indices or other indices), and, if so, the terms and
conditions upon which and the manner in which such amounts
shall be determined and paid or payable;
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(xv) the title and amount of the Debentures and any Other
Documents to be acquired with the proceeds of the sale of the
Securities;
(xvi) the ranking of the Trust Preferred Securities and the
Common Securities; and
(xvii) any other rights, preferences, restrictions,
limitations or conditions relative to the Trust Preferred
Securities or the Common Securities permitted by Delaware law
and any deletions from or modifications or additions to this
Agreement, including any Events of Default or covenants of any
of the parties hereto, in respect of the Securities, provided
no covenant in this Agreement may be modified without the
consent of the party giving such covenant.
(c) The Certificates shall be in the forms prepared by the Sponsor and
signed on behalf of the Trust by at least one Administrative Trustee.
Such signature shall be the manual or facsimile signature of any
present or any future Administrative Trustee. In case any
Administrative Trustee who shall have signed any of the Securities
shall cease to be such Administrative Trustee before the Certificates
so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Administrative Trustee; and any
Certificate may be signed on behalf of the Trust by any persons who, at
the actual date of execution of such Certificate, shall be an
Administrative Trustee of the Trust, although at the date of the
execution and delivery of the Agreement any such person was not such an
Administrative Trustee. Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustee, as evidenced by such
individual's execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or
endorsements as the Administrative Trustee that signs such Certificates
may deem appropriate, or as may be required to comply with any law or
with any rule or regulation of any stock exchange on which Securities
may be listed, or to conform to usage.
A Trust Preferred Security Certificate shall not be valid
until authenticated by the manual signature of an authorized officer of
the Property Trustee. Such signature shall be conclusive evidence that
a Trust Preferred Security Certificate has been authenticated under
this Agreement. Each Trust Preferred Security Certificate shall be
dated the date of its authentication by the Property Trustee. Each
Common Security Certificate shall be dated the date it is executed by
an Administrative Trustee. Upon a written order of the Trust signed by
one Administrative Trustee, the Property Trustee shall authenticate
Trust Preferred Security Certificates, provided the aggregate
liquidation amount or number of the Trust Preferred Securities shall
not exceed the aggregate liquidation amount or number, as the case may
be, of Trust Preferred Securities designated in the Terms and
Conditions, as such liquidation amount or number, as the case may be,
may be reduced by redemptions, repayments, exchanges, conversions or
liquidating distributions.
The Property Trustee may appoint an authenticating agent
acceptable to the Administrative Trustees to authenticate Trust
Preferred Security Certificates. An authenticating agent may
authenticate Trust Preferred Security Certificates whenever the
37
Property Trustee may do so. Each reference in this Agreement to
authentication by the Property Trustee includes authentication by such
agent. An authenticating agent has the same rights as the Property
Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Agreement, the
Securities so issued shall be deemed to be validly issued, fully paid
and, subject to Section 10.1(b), non-assessable.
(f) Every Person, by virtue of having become a Holder or a Trust
Preferred Security Beneficial Owner in accordance with the terms of
this Agreement, shall be deemed to have expressly assented and agreed
to the terms of, and shall be bound by, this Agreement.
Section 7.2 Paying Agent and Registrar. In the event that the Trust Preferred
Securities are not in book-entry only form:
(a) The Trust shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where the Trust Preferred Securities may
be presented for payment ("Paying Agent"), and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. The
Administrative Trustees on behalf of the Trust may appoint the Paying
Agent and may appoint one or more additional paying agents in such
other locations as it shall determine. The term "Paying Agent" includes
any additional paying agent. The Administrative Trustees on behalf of
the Trust may change any Paying Agent without prior notice to any
Holder. The Administrative Trustees on behalf of the Trust shall notify
the Property Trustee of the name and address of any Paying Agent not a
party to this Agreement. If the Administrative Trustees on behalf of
the Trust fail to appoint or maintain another entity as Paying Agent,
the Property Trustee shall act as such. The Administrative Trustees on
behalf of the Trust or any of its Affiliates (including the Sponsor)
may act as Paying Agent. The Property Trustee at its Corporate Trust
Office shall initially act as Paying Agent for the Trust Preferred
Securities and the Common Securities.
(b) The Trust shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Trust Preferred Securities may be
presented for registration of transfer or exchange ("Registrar"). The
Registrar shall keep a register of the Trust Preferred Securities and
of their transfer or exchange. The Administrative Trustees on behalf of
the Trust may appoint the Registrar and may appoint one or more
co-registrars in such other locations as it shall determine. The term
"Registrar" includes any such additional registrar. The Administrative
Trustees on behalf of the Trust may change any Registrar or
co-registrar without prior notice to any Holder. The Administrative
Trustees on behalf of the Trust shall notify the Property Trustee of
the name and address of any Agent not a party to this Agreement. If the
Administrative Trustees on behalf of the
38
Trust fail to appoint or maintain another entity as Registrar, the
Property Trustee shall act as such. The Trust or any of its Affiliates
(including the Sponsor) may act as Registrar. The Administrative
Trustees on behalf of the Trust shall act as Registrar for the Common
Securities.
(c) Notwithstanding Sections 3.6(b)(vi) and 3.6(l), the Trust initially
appoints the Property Trustee as Registrar for the Trust Preferred
Securities and authorizes it to execute and deliver letters, documents
and instruments with DTC and other Clearing Agencies relating to the
Trust Preferred Securities.
ARTICLE VIII
TERMINATION OF TRUST
Section 8.1 Termination of Trust.
(a) The Trust shall dissolve and its affairs shall be wound up upon the
first of the following to occur:
(i) (other than in connection with a merger, consolidation or
similar transaction not prohibited by this Agreement or any
Trust Property) upon the filing of a certificate of
dissolution or its equivalent with respect to the Sponsor [or
the Debenture Issuer]; or the revocation of the Sponsor's [or
the Debenture Issuer's] charter and the expiration of 90 days
after the date of revocation without a reinstatement thereof;
(ii) upon the entry of a decree of judicial dissolution of the
Trust;
(iii) when all the Securities shall have been called for
redemption, repayment, conversion or exchange and the amounts
necessary for redemption, repayment, conversion or exchange
thereof shall have been distributed to the Holders in
accordance with the terms of this Agreement and the
Securities;
(iv) upon the liquidation of the Trust and the distribution to
the Holders of all amounts they are required to receive in
accordance with the terms of this Agreement and the
Securities;
(v) the expiration of the term of the Trust provided in
Section 3.13 of this Agreement; and
(vi) any other event specified in the Terms and Conditions.
(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.1(a) and upon completion of the winding-up of the
Trust, an Administrative Trustee shall file a certificate of
cancellation of the Certificate of Trust of the Trust with the
Secretary of State of the State of Delaware.
(c) The provisions of Section 4.4 and Article X shall survive the
termination of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Agreement
and in the terms of the Securities. To the fullest extent permitted by
law, any transfer or purported transfer of any Security not made in
accordance with this Agreement shall be null and void.
(b) Subject to this Article IX and the Terms and Conditions, Trust
Preferred Securities shall be freely transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of
the Sponsor; provided that, any such transfer is subject to the
condition precedent that the transferor obtain the written opinion of
nationally recognized independent counsel experienced in such matters
that such transfer would not cause more than an insubstantial risk
that:
(i) the Trust would not be classified for U.S. Federal income
tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
Section 9.2 Transfer or Exchange of Certificates. The Registrar shall provide
for the registration of Certificates and of transfers or exchanges of
Certificates, which shall be effected without charge but only upon payment (with
such indemnity as the Administrative Trustees may require) in respect of any tax
or other government charges that may be imposed in relation to it. The Trust
will not be required to register or cause to be registered the transfer of its
trust preferred securities after they have been converted, exchanged, repaid,
redeemed or called for redemption. Upon surrender for registration of transfer
or exchange of any Certificate at the Corporate Trust Office of the Property
Trustee, the applicable Registrar shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees or the party
requesting the exchange, as the case may be. Every Certificate surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer or exchange in form satisfactory to the applicable
Registrar and duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer
or exchange shall be canceled by the applicable Registrar. A transferee of a
Certificate and the recipient of one or more Certificates issued in exchange for
cancelled Certificates shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee or
recipient of a Certificate or Certificates duly executed by an Administrative
Trustee and, in the case of a Trust Preferred Security Certificate,
authenticated by the Property Trustee. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Agreement.
40
Section 9.3 Deemed Security Holders. The Trustees may treat the Person in whose
name any Certificate shall be registered on the books and records of the Trust
as the sole holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Certificate or in the Securities represented
by such Certificate on the part of any Person, whether or not the Trust shall
have actual or other notice thereof.
Section 9.4 Book Entry Interests. Unless otherwise specified in the Terms and
Conditions, the Trust Preferred Securities Certificates, on original issuance,
shall be issued in the form of one or more, fully registered, global Trust
Preferred Security Certificates (each a "Global Certificate"), to be delivered
to DTC, the initial Clearing Agency, by, or on behalf of, the Trust. Each such
Global Certificate shall initially be registered on the books and records of the
Trust in the name of Cede & Co., the nominee of DTC, and no Trust Preferred
Security Beneficial Owner will receive a definitive Trust Preferred Security
Certificate representing such Trust Preferred Security Beneficial Owner's
interests in any Global Certificate, except as provided in Section 9.7. Except
for the definitive Trust Preferred Security Certificates issued to the Trust
Preferred Security Beneficial Owners pursuant to Section 9.7 or in accordance
with the Terms and Conditions:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust, the Trustees and any Agent shall be entitled to deal
with the Clearing Agency for all purposes of this Agreement (including
the payment of distributions on any Global Certificate and receiving
approvals, votes or consents hereunder) as the Holder of the Trust
Preferred Securities and the sole holder of any Global Certificate and
shall have no obligation to the Trust Preferred Security Beneficial
Owners;
(c) to the extent that the provisions of this Section 9.4 conflict with
any other provisions of this Agreement other than the Terms and
Conditions, the provisions of this Section 9.4 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between the Trust Preferred
Security Beneficial Owners and the Clearing Agency and/or the Clearing
Agency Participants to receive and transmit payments and other
distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing
Agency Participants; provided, that, solely for the purposes of
determining whether the Holders of the requisite amount of Trust
Preferred Securities have voted on any matter provided for in this
Agreement, the Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument (including a proxy)
delivered to the Trustees by the Clearing Agency setting forth the
Trust Preferred Security Beneficial Owners' votes or assigning the
right to vote on any matter to any other Persons either in whole or in
part.
Section 9.5 Notices to Clearing Agency. Whenever a notice or other communication
to the Trust Preferred Security Holders is required under this Agreement, unless
and until definitive fully registered Trust Preferred Security Certificates
shall have been issued to the Trust Preferred
41
Security Beneficial Owners pursuant to Section 9.7 or otherwise, the
Administrative Trustees shall give all such notices and communications specified
herein to be given to the Trust Preferred Security Holders to the Clearing
Agency, and shall have no notice obligations to the Trust Preferred Security
Beneficial Owners.
Section 9.6 Appointment of Successor Clearing Agency. If any Clearing Agency
elects to discontinue its services as securities depositary with respect to the
Trust Preferred Securities, the Administrative Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to such Trust
Preferred Securities.
Section 9.7 Definitive Trust Preferred Security Certificates. If:
(a) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Trust Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Administrative Trustees elect after consultation with the
Sponsor to terminate the book-entry system through the Clearing Agency
with respect to the Trust Preferred Securities, then:
(i) definitive fully registered Trust Preferred Security
Certificates shall be prepared and executed by the
Administrative Trustees and authenticated by the Property
Trustee on behalf of the Trust with respect to such Trust
Preferred Securities; and
(ii) upon surrender of any Global Certificate by the Clearing
Agency, accompanied by registration instructions, the
Administrative Trustees shall cause definitive fully
registered Trust Preferred Securities Certificates to be
executed, and the Property Trustee shall cause such Trust
Preferred Securities Certificates to be authenticated and
delivered to Trust Preferred Security Beneficial Owners in
accordance with the instructions of the Clearing Agency.
Neither the Trustees nor the Trust shall be liable for any
delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on,
said instructions of the Clearing Agency. The definitive fully
registered Trust Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the
Administrative Trustees and the Property Trustee may deem
appropriate, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which Trust
Preferred Securities may be listed, or to conform to usage.
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificate shall be surrendered to the
Administrative Trustees, or if the Administrative Trustees shall
receive evidence to their satisfaction of the destruction, loss or
theft of any Certificate; and
42
(b) there shall be delivered to the Administrative Trustees and the
Property Trustee such security or indemnity as may be required by them
to keep each of the Trustees and the Trust harmless, then, in the
absence of notice that such Certificate shall have been acquired by a
protected purchaser, any Administrative Trustee on behalf of the Trust
shall execute and deliver, and, in the case of a Trust Preferred
Securities Certificate, the Property Trustee shall authenticate, in
exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In
connection with the issuance of any new Certificate under this Section
9.8, the Administrative Trustees and the Property Trustee 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 Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the Debentures,
any other instrument or agreement, the Securities Guarantees and the
terms of the Securities, [neither] the Sponsor [nor the Debenture
Issuer] shall [not] be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders
of the Securities, which shall be made solely from assets of
the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) The Sponsor, as the [Debenture Issuer] [Debenture Guarantor], shall
be liable for all of the debts and obligations of the Trust (other than
with respect to the Securities) to the extent not satisfied out of the
Trust's assets.
(c) Pursuant to Section 3803(a) of the Statutory Trust Act, the Holders
of the Trust Preferred Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware.
Section 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably
believed
43
to be within the scope of the authority conferred on such Indemnified
Person by this Agreement or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason
of such Indemnified Person's gross negligence (or, in the case of the
Property Trustee, negligence), bad faith or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
Section 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting
under this Agreement shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the
Property Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons and any Indemnified Person; or
(ii) whenever this Agreement or any other instrument or
agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Trust or any Holder
of Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such terms,
considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating
to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not
constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is permitted or
required to make a decision:
44
(i) in its "sole discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard
imposed by this Agreement or by applicable law.
Section 10.4 Indemnification.
(a) (i) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than
an action by or in the right of the Trust) by reason of the
fact that he is or was a Company Indemnified Person against
expenses (including reasonable attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Company Indemnified
Person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(ii) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Trust to procure a judgment in its favor by reason of the fact
that he is or was a Company Indemnified Person against
expenses (including reasonable attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue
or matter as to which such Company Indemnified Person shall
have been adjudged to be liable to the Trust unless and only
to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court
shall deem proper.
45
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made
by the Sponsor only as authorized in the specific case upon a
determination that indemnification of the Company Indemnified
Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and
(ii). Such determination shall be made (1) by the
Administrative Trustees by a majority vote of a Quorum
consisting of such Administrative Trustees who were not
parties to such action, suit or proceeding, (2) if such a
Quorum is not obtainable, or, even if obtainable, if a Quorum
of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the
Common Security Holder of the Trust.
(iv) Expenses (including reasonable attorneys' fees) incurred
by a Company Indemnified Person in defending a civil,
criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this
Section 10.4(a) shall be paid by the Sponsor in advance of the
final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately
be determined that such person is not entitled to be
indemnified by the Sponsor as authorized in this Section
10.4(a). Notwithstanding the foregoing, no advance shall be
made by the Sponsor if a determination is reasonably and
promptly made (i) by the Administrative Trustees by a majority
vote of a Quorum of disinterested Administrative Trustees,
(ii) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrative
Trustees so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Administrative
Trustees, independent legal counsel or Common Security Holder
at the time such determination is made, such person acted in
bad faith or in a manner that such person did not believe to
be in or not opposed to the best interests of the Trust, or,
with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe
his conduct was unlawful. In no event shall any advance be
made in instances where the Administrative Trustees,
independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached such person's
duty to the Trust or its Common or Trust Preferred Security
Holders.
(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this
Section 10.4(a) shall not be deemed exclusive of any other
rights to which those seeking indemnification and advancement
of expenses may be entitled under any agreement, vote of
shareholders or disinterested directors of the Sponsor or
Trust Preferred Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in
another capacity while holding such office. All rights to
indemnification under this Section 10.4(a) shall be deemed to
be provided by a contract between the Sponsor and each Company
Indemnified Person who serves in such capacity at any time
while this Section 10.4(a) is in effect. Any repeal or
46
modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(vi) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company
Indemnified Person against any liability asserted against him
and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Sponsor would have the
power to indemnify him against such liability under the
provisions of this Section 10.4(a).
(vii) For purposes of this Section 10.4(a), references to the
"Trust" shall include, in addition to the resulting or
surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a
director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or
surviving entity as such person would have with respect to
such constituent entity if its separate existence had
continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a)
shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Company
Indemnified Person and shall inure to the benefit of the
successors, heirs, executors and administrators of such a
person.
(b) To the fullest extent permitted by law, the Sponsor agrees to
indemnify each Fiduciary Indemnified Person for, and to hold each
Fiduciary Indemnified Person harmless against, any loss, liability or
expense to the extent incurred without gross negligence (or in the case
of the Property Trustee, pursuant to Section 3.9, negligence), bad
faith or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal
fees and expenses) of defending itself against or investigating any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder. The provisions of this Section
10.4(b) shall survive the satisfaction and discharge of this Agreement
and any resignation or removal of the Property Trustee or the Delaware
Trustee, as the case may be.
Section 10.5 Outside Businesses. Any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee (subject to Section 5.3(c)) may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Agreement in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee
47
and the Property 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 Covered Person, the Delaware
Trustee and the Property Trustee may engage or be interested in any financial or
other transaction with the Sponsor or any Affiliate of the Sponsor, or may act
as depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.
Section 10.6 Trustees' Fees and Expenses. Each Trustee shall receive as
compensation for its services hereunder such fees and expenses as have been
separately agreed upon before the date hereof between the Sponsor and such
Trustee, and each Trustee shall be entitled to be reimbursed by the Sponsor for
other reasonable expenses hereunder, including the reasonable compensation,
expenses and disbursements of such agents, representatives, experts and counsel
as such Trustee may employ in connection with the exercise and performance of
its rights and duties hereunder.
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Trust shall be
the calendar year, or such other year as is required by the Code.
Section 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Administrative
Trustees on behalf of the Trust shall keep, or cause to be kept, full
books of account, records and supporting documents, all of which shall
reflect in reasonable detail each transaction of the Trust. The books
of account shall be maintained on the accrual method of accounting, in
accordance with generally accepted accounting principles, consistently
applied. The Trust shall use the accrual method of accounting for U.S.
Federal income tax purposes.
(b) The Administrative Trustees, on behalf of the Trust, shall cause to
be duly prepared and delivered to each of the Holders of Securities,
any annual U.S. Federal income tax information statement required by
the Code and the Treasury Regulations, containing such information with
regard to the Securities held by each Holder as is required by the Code
and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrative
Trustees on behalf of the Trust shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of the
Trust.
(c) The Administrative Trustees on behalf of the Trust shall cause to
be duly prepared and filed with the appropriate taxing authority an
annual U.S. Federal income tax return, on a Form 1041 or such other
form required by U.S. Federal income tax law, and any other annual
income tax returns required to be filed by the Trust with any state or
local taxing authority.
Section 11.3 Banking. The Administrative Trustees, on behalf of the Trust, shall
maintain one or more bank accounts in the name and for the sole benefit of the
Trust; provided, however, that all payments for the benefit of holders of
Securities of funds in respect of Trust Property shall be
48
made directly to the Property Trustee Account and no other funds of the Trust
shall be deposited in the Property Trustee Account. The sole signatories for
such accounts shall be designated by the Administrative Trustees; provided,
however, that the Property Trustee shall designate the signatories for the
Property Trustee Account.
Section 11.4 Withholding. The Administrative Trustees on behalf of the Trust
shall comply with all withholding requirements under U.S. Federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrative
Trustees on behalf of the Trust shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual distributions made, the Trust may reduce subsequent distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments. Except as otherwise provided in this Agreement or by
any applicable terms of the Securities:
(a) this Agreement may only be amended by a written instrument approved
and executed by the Sponsor and the Administrative Trustees (or, if
there are more than two Administrative Trustees, a majority of the
Administrative Trustees) and:
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, also by the
Property Trustee; and
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, also by the
Delaware Trustee;
(b) no amendment shall be made:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers'
Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this
Agreement (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities
of the Property Trustee, the Property Trustee shall have first
received:
49
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by,
and conforms to, the terms of this Agreement
(including the terms of the Securities); and
(B) an opinion of qualified independent counsel that
such amendment is permitted by, and conforms to, the
terms of this Agreement (including the terms of the
Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be
classified for purposes of U.S. federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers
of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the
Investment Company Act;
(c) after the Trust has issued any Securities that remain outstanding,
without the consent of the Holders of a Majority in liquidation amount
of each class of Securities affected, this Agreement may not be amended
for any reason in a manner that would adversely affect the rights,
privileges or preferences of such class of Securities, provided that,
except as may be provided in the Terms and Conditions, without the
consent of each Holder of Securities affected thereby, this Agreement
may not be amended to:
(i) change the Distribution rate, or manner of calculation of
the Distribution rate, amount, timing or currency or otherwise
adversely affect the method of any required payment;
(ii) change the purpose of the Trust;
(iii) authorize the issuance of any additional beneficial
interests in the Trust;
(iv) change the conversion, exchange, redemption or repayment
provisions, if any;
(v) change the conditions precedent for the Sponsor to elect
to dissolve the Trust and distribute the Debentures held by
the Trust to the Holders of the Securities, if applicable;
(vi) change the liquidation, distribution or other provisions
relating to the distribution of amounts payable upon the
dissolution and liquidation of the Trust;
(vii) affect the limited liability of any Holder of the
Securities; or
(viii) restrict the right of a Holder of the Securities to
institute suit for the enforcement of any required payment on
or, if applicable, after the due date
50
therefor or for the conversion or exchange of the Securities
in accordance with their terms.
(d) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Sponsor;
(f) the rights of the holders of the Common Securities under Article V
to increase or decrease the number of, and appoint and remove, Trustees
shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Agreement may be amended by
the Trustees and the Sponsor without the consent of the Holders of the
any Securities that are outstanding to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Agreement
that may be defective or inconsistent with any other provision
of this Agreement;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in the Investment Company Act or
the Trust Indenture Act or the rules and regulations
promulgated thereunder or any written change in interpretation
or application of such act or such rules or regulations by any
legislative body, court, government agency or regulatory
authority; or
(v) cause the Trust to continue to be classified for U.S.
federal income tax purposes as a grantor trust,
provided however, that, in the case of clauses (i) or (ii), such action
shall not adversely affect in any material respect the interests of the
Holders. Any amendments to this Agreement adopted pursuant to Section
12.1(g) shall become effective when notice thereof is given to the
Holders.
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Except as otherwise provided in the Terms and Conditions, meetings
of the Holders of any class of Securities may be called at any time by
the Administrative Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of
Securities are entitled to act under the terms of this Agreement, the
terms of the Securities or the rules of any stock exchange on which the
Trust Preferred Securities are listed or admitted for trading. The
Administrative Trustees shall call a meeting of the Holders if directed
to do so by the Holders of at least 10% in liquidation amount of
Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more calls in a writing stating that the
signing Holders of Securities wish
51
to call a meeting and indicating the general or specific purpose for
which the meeting is to be called. Any Holders of Securities calling a
meeting shall specify in writing the Certificates held by the Holders
of Securities exercising the right to call a meeting and only those
Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders
of Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least
seven days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders
of Securities is permitted or required under this Agreement,
the terms of the Securities or the rules of any stock exchange
on which the Trust Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given at a
meeting of the Holders of Securities. Any action that may be
taken at a meeting of the Holders of Securities may be taken
without a meeting and without prior notice if a consent in
writing setting forth the action so taken is signed by the
Holders of Securities owning not less than the minimum amount
of Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all
Holders of Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The
Administrative Trustees may specify that any written ballot
submitted to the Holder of Securities for the purpose of
taking any action without a meeting shall be returned to the
Trust within the time specified by the Administrative
Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities
is entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be
governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other
Person that the Administrative Trustees may designate; and
(iv) unless the Statutory Trust Act, this Agreement, the terms
of the Securities, the Trust Indenture Act or the listing
rules of any stock exchange on which the Trust Preferred
Securities are then listed or trading otherwise provides, the
Administrative Trustees, in their sole discretion, shall
establish all other
52
provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting
at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter
with respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Property Trustee. The Trustee
that acts as initial Property Trustee represents and warrants to the Trust and
to the Sponsor at the date of this Agreement, and each Successor Property
Trustee represents and warrants to the Trust and the Sponsor at the time of the
Successor Property Trustee's acceptance of its appointment as Property Trustee,
that:
(a) the Property Trustee is a banking corporation, a national banking
association or a bank with trust powers, duly organized, validly
existing and in good standing under the laws of the United States of
America or any State of the United States, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Agreement;
(b) the Property Trustee satisfies the requirements set forth in
Section 5.3(a);
(c) the execution, delivery and performance by the Property Trustee of
this Agreement has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Agreement has been duly
executed and delivered by the Property Trustee, and it constitutes a
legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law);
(d) the execution, delivery and performance of this Agreement by the
Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(e) no consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of this
Agreement.
Section 13.2 Representations and Warranties of Delaware Trustee. The Trustee
that acts as initial Delaware Trustee represents and warrants to the Trust and
to the Sponsor at the date of this Agreement, and each Successor Delaware
Trustee represents and warrants to the Trust and the Sponsor at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee,
that:
53
(i) the Delaware Trustee is a banking corporation or national
banking association, duly organized, validly existing and in
good standing under the laws of the State of Delaware or the
United States, as the case may be, with power and authority to
execute and deliver, and to carry out and perform its
obligations under the terms of, this Agreement;
(ii) the execution, delivery and performance by the Delaware
Trustee of this Agreement has been duly authorized by all
necessary corporate action on the part of the Delaware
Trustee. This Agreement has been duly executed and delivered
by the Delaware Trustee, and it constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law);
(iii) no consent, approval or authorization of, or
registration with or notice to, any State or Federal banking
authority is required for the execution, delivery or
performance by the Delaware Trustee of this Agreement; and
(iv) the execution, delivery and performance of the Agreement
by the Delaware Trustee does not conflict with or constitute a
breach of the Articles of Organization or By-laws of the
Delaware Trustee; and
(v) the Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State
of Delaware.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices. All notices provided for in this Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Administrative Trustees or the Trust, in care of
the Administrative Trustees at the Trust's mailing address set forth
below (or such other address as the Trust may give notice of to the
Holders of the Securities and the other Trustees):
Apache Trust [I/II]
c/o
Apache Corporation
One Post Oak Central
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
54
Chase Manhattan Bank USA, National Association
c/o JPMorgan Chase
Attn: Institutional Trust Services
000 Xxxxxxx Xxxxxxxxxx Xxxx, XXX0
Xxxxxx, Xxxxxxxx 00000
(c) if given to the Property Trustee, at its Corporate Trust Office to
the attention of Capital Markets Fiduciary Services (or such other
address as the Property Trustee may give notice of to the Holders of
the Securities):
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust and the
other Trustees):
Apache Trust [I/II]
c/o
Apache Corporation
One Post Oak Central
0000 Xxxx Xxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
(e) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 14.2 Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to principles of conflict of laws.
Section 14.3 Intention of the Parties. It is the intention of the parties hereto
that the Trust be classified for U.S. Federal income tax purposes as a grantor
trust. The provisions of this Agreement shall be interpreted to further this
intention of the parties.
Section 14.4 Headings. Headings contained in this Agreement are inserted for
convenience of reference only and do not affect the interpretation of this
Agreement or any provision hereof.
Section 14.5 Successors and Assigns. Whenever in this Agreement any of the
parties hereto is named or referred to, the successors and assigns of such party
shall be deemed to be included,
55
and all covenants and agreements in this Agreement by the Sponsor and the
Trustees shall bind and inure to the benefit of their respective successors and
assigns, whether so expressed.
Section 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such provision to any
Person or circumstance, shall be held invalid, the remainder of this Agreement,
or the application of such provision to persons or circumstances other than
those to which it is held invalid, shall not be affected thereby.
Section 14.7 Entire Agreement.
This Agreement constitutes the entire agreement among the parties. It supersedes
any prior agreement or understandings among them, and it may not be modified or
amended in any manner other than as set forth herein.
Section 14.8 Remedies.
The failure of any party to seek redress for violation of, or to insist upon the
strict performance of, any provision of this Agreement shall not prevent a
subsequent act, which would have originally constituted a violation, from having
the effect of an original violation. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any party
shall not preclude or waive its right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may
have by law, statute, ordinance or otherwise.
Section 14.9 Counterparts. This Agreement may contain more than one counterpart
of the signature page and this Agreement may be executed by affixing the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
56
IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as
of the day and year first above written.
-----------------------------------------
Xxxxxxx X. Xxxxxxx, as Administrative
Trustee of the Trust
-----------------------------------------
Xxxxxx X. Xxxxxxxx, as Administrative
Trustee of the Trust
CHASE MANHATTAN BANK USA, as Delaware
Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
XX XXXXXX XXXXX BANK, as Property Trustee
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
APACHE CORPORATION, as Sponsor
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
57
EXHIBIT A
TERMS AND CONDITIONS OF
_____% TRUST PREFERRED SECURITIES
_____% COMMON SECURITIES
[NOTE: This is a form of Terms and Conditions. The actual Terms and Conditions
included in this Agreement may vary substantially from this form, as
contemplated by Section 7.1(b) of the form of Amended and Restated
Trust
Agreement.]
Pursuant to Section 7.1 (a) of the Amended and Restated
Trust
Agreement, dated as of _______________, of Apache Trust [I/II] (as amended from
time to time, the "Agreement"), the undersigned, being all the Administrative
Trustees of Apache Trust [I/II], hereby establish the designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Trust Preferred Securities and the Common Securities:
(1) The Terms and Conditions form a part of the Agreement,
except as otherwise provided herein or unless the context otherwise
requires, and all of the provisions of the other parts of the
Agreement, including the definitions of capitalized terms, apply to
these Terms and Conditions. Furthermore, unless the context otherwise
requires, in these Terms and Conditions, references to paragraphs mean
paragraphs of these Terms and Conditions and:
["Applicable Ownership Interest" has the meaning set forth in
paragraph 5(c).]
["Applicable Principal Amount" has the meaning set forth in
paragraph 5(c).]
["Authorized Newspaper" for purposes of the Reset Spread
Announcement Date shall be ____________________________.]
["Collateral Agent" means ____________________________.]
"Coupon Rate" has the meaning set forth in paragraph 3(a).
"Debentures" means ___________.
"Distribution" has the meaning set forth in paragraph 3(a).
["Debenture Repayment Price" means, with respect to any
Debentures put to the Sponsor on ____________________, an amount per Debenture
equal to $________, plus accrued and unpaid interest.]
["Failed Remarketing" has the meaning set forth in the
Purchase Contract Agreement.]
"Investment Company Event" has the meaning set forth in
paragraph 5(b).
"Liquidation Distribution" has the meaning set forth in
paragraph 4.
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"Ministerial Action" has the meaning set forth in paragraph
5(b).
["Payment Amount" has the meaning set forth in paragraph
_____.]
["Pledge Agreement" means the Pledge Agreement dated as of
_________________ among the Sponsor, ________________________, as collateral
agent (the "Collateral Agent"), and _________________________, as purchase
contract agent (the "Purchase Contract Agent").]
["Primary Treasury Dealer" has the meaning set forth in
paragraph _______.]
["Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of _______________________ between ___________________, as
Purchase Contract Agent, and the Sponsor.]
["Purchase Contract Settlement Date" means
_________________________.]
["Put Option" has the meaning set forth in paragraph 7(a).]
["Put Option Exercise Date" has the meaning set forth in
paragraph 7(a).]
["Put Option Repayment Price" has the meaning set forth in
paragraph 7(a).]
["Quotation Agent" has the meaning set forth in paragraph
5(c).]
["Redemption Amount" has the meaning set forth in paragraph
5(c).]
"Redemption/Distribution Notice" has the meaning set forth in
paragraph 6(a).
"Redemption Price" has the meaning set forth in paragraph
5(c).
["Remarketing Agreement" has the meaning set forth in the
Purchase Contract Agreement.]
["Reset Agent" means a nationally recognized investment
banking firm chosen by the Sponsor to determine the Reset Rate. It is currently
anticipated that ___________________ will act in such capacity.]
["Reset Announcement Date" means the tenth (10) Business Day
immediately preceding the Purchase Contract Settlement Date.]
["Reset Rate" means the distribution rate per annum (to be
determined by the Reset Agent), equal to the sum of (x) the Reset Spread and (y)
the rate of interest on the Two Year Benchmark Treasury in effect on the third
Business Day immediately preceding the Purchase Contract Settlement Date, that
the Trust Preferred Securities should bear in order for the Trust Preferred
Securities to have an approximate market value of _________% of their aggregate
liquidation amount on the third Business Day immediately preceding the Purchase
Contract Settlement Date; provided, that the Sponsor may limit such Reset Spread
to be no higher than _________ basis points (_____%).]
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["Reset Spread" means a spread amount to be determined by the
Reset Agent on the tenth (10) Business Day immediately preceding the Purchase
Contract Settlement Date.]
"Tax Event" has the meaning set forth in paragraph 5(c).
"Tax Event Redemption" has the meaning set forth in paragraph
5(c).
"Tax Event Redemption Date" has the meaning set forth in
paragraph 5(c).
["Termination Event" has the meaning set forth in Section 1 of
the Purchase Contract Agreement.]
["Treasury Portfolio" has the meaning set forth in paragraph
5(c).]
["Treasury Portfolio Purchase Price" has the meaning set forth
in paragraph 5(c).]
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
U.S. Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
["Treasury Securities" has the meaning set forth in Section 1
of the Purchase Contract Agreement.]
["Two-Year Benchmark Treasury" means direct obligations of the
United States (which may be obligations traded on a when-issued basis only)
having a maturity comparable to the remaining term to maturity of the Trust
Preferred Securities, as agreed upon by the Sponsor and the Reset Agent. The
rate for the Two-Year Benchmark Treasury will be the bid side rate displayed at
10:00 A.M., New York City time, on the third Business Day immediately preceding
the Purchase Contract Settlement Date in the Telerate system (or if the Telerate
system is (a) no longer available on the third Business Day immediately
preceding the Purchase Contract Settlement Date or (b) in the opinion of the
Reset Agent (after consultation with the Sponsor) no longer an appropriate
system from which to obtain such rate, such other nationally recognized
quotation system as, in the opinion of the Reset Agent (after consultation with
the Sponsor) is appropriate. If such rate is not so displayed, the rate for the
Two-Year Benchmark Treasury shall be, as calculated by the Reset Agent, the
yield to maturity for the Two-Year Benchmark Treasury, expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis, and computed by taking the arithmetic mean of the secondary
market bid rates, as of 10:30 A.M., New York City time, on the third Business
Day immediately preceding the Purchase Contract Settlement Date, of three
leading U.S. government securities dealers selected by the Reset Agent (after
consultation with the Sponsor) (which may include the Reset Agent or an
Affiliate thereof).]
(2) Designation and Number.
(a) Trust Preferred Securities. Preferred securities of the
Trust, with an aggregate liquidation amount with respect to the assets of the
Trust of up to ___________________ Dollars ($___________) and a liquidation
amount with respect to the assets of the Trust of $_________ per security, are
hereby designated for the purposes of identification only as "______% Trust
Preferred Securities" (the "Trust Preferred Securities"). The Trust Preferred
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Security Certificates evidencing the Trust Preferred Securities shall be
substantially in the form of Exhibit A-I to the Agreement, with such changes and
additions thereto or deletions therefrom as may be required by applicable law or
the rules of any stock exchange on which the Trust Preferred Securities are
listed or to conform to ordinary usage, custom or practice.
(b) Common Securities. Common Securities of the Trust, with an
aggregate liquidation amount with respect to the assets of the Trust of up
to____________________ Dollars ($____________) and a liquidation amount with
respect to the assets of the Trust of $_______ per security, are hereby
designated for the purposes of identification only as "______% Common
Securities" (the "Common Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form of Exhibit
A-2 to the Agreement, with such changes and additions thereto or deletions
therefrom as may be required by applicable law or to conform to ordinary usage,
custom or practice.
(c) The maximum liquidation amount of Trust Preferred
Securities and Common Securities referred to above excludes Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of other Securities pursuant to Section 9.2, 9.7 or 9.8 of the
Agreement, upon repayment, redemption, exchange [or conversion] into other
securities in accordance with its terms.
(d) The Preferred Securities and the Common Securities
represent undivided beneficial interests in the assets of the Trust.
(e) In connection with the purchase of the Securities, the
Sponsor will deposit in the Trust, and the Trust will purchase, respectively, as
trust assets, Debentures of the Sponsor having an aggregate principal amount
equal to $[ ], and bearing interest at an annual rate equal to the annual
Distribution rate on the Preferred Securities and Common Securities and having
payment and redemption provisions which correspond to the payment and redemption
provisions of the Preferred Securities and Common Securities.
(3) Distributions.
(a) Cash distributions will be payable on each Security at the
rate per annum of _____% (the "Coupon Rate") of the stated liquidation amount of
$______ per Security [until ________________________, and at the Reset Rate
thereafter], such rate[s] being the rate[s] of interest payable on the
Debentures. Distributions in arrears for more than one quarter will bear
interest thereon compounded quarterly at the rate of ______% [until
__________________________ and at the Reset Rate thereafter] (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year consisting of twelve 30-day months, and for any period
shorter than a full quarterly Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the actual number of
days elapsed per 30-day month.
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(b) Distributions on the Securities will be cumulative, will
accumulate from _____________________, and will be payable quarterly in arrears,
on __________________, _____________________ and _________________________ of
each year, commencing on _____________________, when, as and if available for
payment, except as otherwise described below (a "Distribution Payment Date")
except as otherwise described below. [So long as the Debenture Issuer shall not
be in default in the payment of interest on the Debentures, the Debenture Issuer
has the right under the Indenture to defer payments of interest on the
Debentures by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures, provided that no Extension Period shall last beyond
the Stated Maturity of the Debentures. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly to the
extent permitted by law during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period, together with
all such previous and further extensions thereof, may not exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Debentures. Any interest
accrued on the Debentures during an Extension Period shall be paid Pro Rata to
holders of Debentures on the first payment date following the Extension Period
and the Payment Amount shall be paid Pro Rata to the Holders on the first
Distribution Payment Date following the Extension Period. Upon the termination
of any Extension Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period, subject to the above requirements.
If (i) the Debenture Issuer shall exercise its right to defer payment of
interest as provided above and the Extension Period is continuing, or (ii) there
shall have occurred any Event of Default, as defined in the Indenture, or (iii)
there shall have occurred any Event of Default, as defined in the Trust
Preferred Securities Guarantee, then (a) the Debenture Issuer shall not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Debenture Issuer's
Capital Stock or (ii) make any payment of principal of or interest on or repay,
repurchase or redeem any debt securities of the Debenture Issuer that rank
equally with or junior to the Debentures or make any guarantee payments with
respect to any guarantee by the Debenture Issuer of the debt securities of any
Subsidiary of the Debenture Issuer that by its terms ranks equally with or
junior to the Debentures (other than (a) dividends or distributions in Common
Stock, (b) any declaration of a dividend in connection with the implementation
of a Rights Plan, the issuance of any Capital Stock of the Debenture Issuer
under any Rights Plan or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any Guarantee relating to the
Trust Preferred Securities, and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under the Debenture Issuer's dividend
reinvestment plan, or under any of the Debenture Issuer's benefit plans for its
directors, officers, employees, consultants or advisors).]
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust at the
close of business on the Business Day immediately preceding each of the relevant
payment dates on the Securities. [Subject to any applicable laws and regulations
and the provisions of the Agreement, each such payment in respect of the Trust
Preferred Securities will be made as described under the heading
"_________________" in the Prospectus Supplement dated _____________________ to
the Prospectus dated ______________________ (collectively, the "Prospectus") of
the Trust relating
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to the Registration Statement on Form S-3 (file no._________________________) of
the Sponsor and the Trust.] The relevant record dates for the Common Securities
shall be the same record date as for the Trust Preferred Securities. If the
Trust Preferred Securities shall not continue to remain in book-entry only form
or are not in book-entry only form at issuance, the relevant record dates for
the Trust Preferred Securities shall conform to the rules of any securities
exchange on which the securities are listed and, if none, as shall be selected
by the Administrative Trustees, which dates shall be at least more than one, but
less than 60 Business Days before the relevant payment dates, which payment
dates correspond to the interest payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer [or the Debenture Guarantor,
as the case may be,] having failed to make a payment under the Debentures, will
cease to be payable to the Person in whose name such Securities are registered
on the relevant record date, and such defaulted Distribution will instead be
payable to the Person in whose name such Securities are registered on the
special record date or other specified date determined in accordance with the
Indenture; provided, however, that Distributions shall not be considered payable
on any Distribution Payment Date falling within an Extension Period unless the
Debenture Issuer has elected to make a full or partial payment of interest
accrued on the Debentures on such Distribution Payment Date. If any date on
which Distributions are payable on the Securities is not a Business Day, then
payment of the Distribution 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 is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. [So long as the Holder of any Trust Preferred Securities is the
Collateral Agent, the payment of Distributions on such Trust Preferred
Securities held by the Collateral Agent will be made at such place and to such
account as may be designated by the Collateral Agent.] Distributions on the
Securities will be paid by the Trust.
[(d) The Coupon Rate on the Securities (as well as the
interest rate on the Debentures) will be reset on the third Business Day
immediately preceding the Purchase Contract Settlement Date to the Reset Rate
(which Reset Rate will be in effect on and after the Purchase Contract
Settlement Date). On the Reset Announcement Date, the Reset Spread and the
Two-Year Benchmark Treasury to be used to determine the Reset Rate will be
announced by the Sponsor. On the Business Day immediately following the Reset
Announcement Date, the Holders of Securities will be notified of such Reset
Spread and Two-Year Benchmark Treasury by the Sponsor. Such notice shall be
sufficiently given to Holders of Securities if published in an Authorized
Newspaper.]
[(e) Not later than 7 calendar days nor more than 15 calendar
days prior to the Reset Announcement Date, the Sponsor will request DTC (as
defined herein) or its nominee (or any successor Clearing Agency or its nominee)
by first-class mail, postage prepaid, to notify the Trust Preferred Security
Beneficial Owner or Clearing Agency Participants holding Trust Preferred
Securities of such Reset Announcement Date and the procedures to be followed by
such Holders who intend to settle their obligation under the Purchase Contract
with separate cash.]
(f) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders of the
Securities.
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(4) Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or other termination of the Trust, the Holders of the
Securities on the date of the dissolution will be entitled to receive out of the
assets of the Trust, after satisfaction (or reasonable provision for
satisfaction) of liabilities to creditors, such amounts as determined by Section
8.1(a) of the Agreement, which shall be distributed on a Pro Rata basis to the
Holders of the Securities in exchange for such Securities (such amount being
"Liquidation Distribution").
(5) Redemption and Distribution
(a) Upon the redemption of the Debentures in whole (but not in
part), at maturity, the proceeds from such redemption shall, after satisfaction
of liabilities to creditors of the Trust, be simultaneously applied to redeem
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed at a redemption price of $_____
per Security plus an amount equal to accumulated and unpaid Distributions
thereon at the date of the repayment, payable in cash.
(b) If an Investment Company Event (as defined herein) shall
occur and be continuing the Administrative Trustees shall dissolve the Trust and
after satisfaction of liabilities to creditors, cause Debentures held by the
Property Trustee, having an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate equal to the rate of _____%,
[if on or prior to ____________________, and the Reset Rate thereafter,] and
accrued and unpaid interest equal to accumulated and unpaid Distributions on,
and having the same record date for payment as the Securities, to be distributed
to the Holders of the Securities in liquidation of such Holders' interests in
the Trust on a Pro Rata basis, within 90 days following the occurrence of such
Investment Company Event (the "90 Day Period"); provided, however, that, if at
the time there is available to the Trust the opportunity to eliminate, within
the 90 Day Period, the Investment Company Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
similar reasonable measure that will have no adverse effect on the Trust, the
Debenture Issuer, the Sponsor or the Holders of the Securities and will involve
no material cost ("Ministerial Action"), the Administrative Trustees will pursue
such Ministerial Action in lieu of dissolution.
"Investment Company Event" means that the Administrative
Trustees shall have received an opinion of independent counsel experienced in
such matters (an "Investment Company Event Opinion") to the effect that, as a
result of the occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act Law"),
which Change in 1940 Act Law becomes effective on or after the date of the
Prospectus, there is a more than an insubstantial risk that the Trust is or will
be considered an investment company that is required to be registered under the
Investment Company Act.
(c) If a Tax Event shall occur and be continuing, the
Debentures are redeemable at the option of the Debenture Issuer, in whole but
not in part, on not less than 30 days nor more than 60 days notice ("Tax Event
Redemption"). If the Debenture Issuer redeems the Debentures upon the occurrence
and continuance of a Tax Event, the proceeds from such redemption shall
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simultaneously be applied by the Trust to redeem the Securities having an
aggregate stated liquidation amount equal to the aggregate principal amount of
the Debentures so redeemed at a redemption price (the "Redemption Price"), per
Security, equal to the Redemption Amount plus any accumulated and unpaid
Distributions thereon to the date of such redemption. [If, following the
occurrence of a Tax Event, the Debenture Issuer exercises its option to redeem
the Debentures, the Debenture Issuer shall appoint the Quotation Agent to
assemble the Treasury Portfolio in consultation with the Company.] To the extent
the Redemption Price is received by the Property Trustee, the Property Trustee
will distribute, to the record Holder of the Securities the Redemption Price
payable in liquidation of such Holder's interests in the Trust.
"Tax Event" means the receipt by the Administrative Trustees
of an opinion of a nationally recognized independent tax counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, (b) any amendment to or change
in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority or (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the generally accepted position on
the date the Securities are issued, which amendment or change is effective or
which interpretation or pronouncement is announced on or after the date of
issuance of the Securities under the Agreement, there is more than an
insubstantial risk that (i) interest payable by the Debenture Issuer on the
Debentures would not be deductible, in whole or in part, by the Debenture Issuer
for federal income tax purposes or (ii) the Trust would be subject to more than
a de minimis amount of other taxes, duties or other governmental charges.
["Treasury Portfolio" means, with respect to the Applicable
Principal Amount of Debentures (a) if the Tax Event Redemption Date occurs prior
to ________________ a portfolio of zero-coupon U.S. Treasury Securities
consisting of (i) interest or principal strips of U.S. Treasury Securities which
mature on or prior to ________________, in an aggregate amount equal to the
Applicable Principal Amount and (ii) with respect to each scheduled interest
payment date on the Debentures that occurs after the Tax Event Redemption Date,
interest or principal strips of U.S. Treasury Securities which mature on or
prior to that date in an aggregate amount equal to the aggregate interest
payment that would be due on the Applicable Principal Amount of the Debentures
on such date, and (b) if the Tax Event Redemption Date occurs after
___________________, a portfolio of zero-coupon U.S. Treasury Securities
consisting of (i) principal or interest strips of U.S. Treasury Securities which
mature on or prior to _________________ in an aggregate amount equal to the
Applicable Principal Amount and (ii) with respect to each scheduled interest
payment date on the Debentures that occurs after the Tax Event Redemption Date,
interest or principal strips of such U.S. Treasury Securities which mature on or
prior to such date in an aggregate amount equal to the aggregate interest
payment that would be due on the Applicable Principal Amount of the Debentures
on such date.]
["Applicable Ownership Interest" means, with respect to [title
of security] and the U.S. Treasury Securities in the Treasury Portfolio, (A) a
1/____,or ____%, undivided beneficial ownership interest in a U.S. Treasury
Security in the amount of $1,000 included in such Treasury Portfolio payable on
or prior to ______________________ and (B) for each scheduled interest payment
date on the Debentures that occurs after the Tax Event Redemption Date, a _____%
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undivided beneficial ownership interest in a $1,000 face amount of such U.S.
Treasury Security which is a principal or interest strip maturing on such date.]
["Applicable Principal Amount" means either (i) if the Tax
Event Redemption Date occurs prior to ______________________, the aggregate
principal amount of the Debentures corresponding to the aggregate stated
liquidation amount of the Trust Preferred Securities [which are components of
title of security]] on the Tax Event Redemption Date or (ii) if the Tax Event
Redemption occurs on or after ________________________ the aggregate principal
amount of the Debentures corresponding to the aggregate stated liquidation
amount of the Trust Preferred Securities outstanding on such Tax Event
Redemption Date.]
["Redemption Amount" means for each Debenture, the product of
(i) the principal amount of such Debenture and (ii) a fraction whose numerator
is the Treasury Portfolio Purchase Price and whose denominator is the Applicable
Principal Amount.]
["Treasury Portfolio Purchase Price" means the lowest
aggregate price quoted by a primary U.S. government securities dealer in New
York City (a "Primary Treasury Dealer") to the Quotation Agent on the third
Business Day immediately preceding the Tax Event Redemption Date for the
purchase of the Treasury Portfolio for settlement on the Tax Event Redemption
Date.]
["Quotation Agent" means (i) _________________________________
and its respective successors, provided, however, that if the foregoing shall
cease to be a Primary Treasury Dealer, the Sponsor shall substitute therefor
another Primary Treasury Dealer and (ii) any other Primary Treasury Dealer
selected by the Sponsor.]
On and from the date fixed by the Administrative Trustees for
a Tax Event Redemption or any distribution of Debentures upon dissolution of the
Trust: (i) the Securities shall no longer be deemed to be outstanding, (ii) DTC
or its nominee (or any successor Clearing Agency or its nominee) or the record
Holder of the Trust Preferred Securities, will receive a registered global
certificate or certificates representing the Debentures to be delivered upon
such distribution and any certificates representing Securities, except for
certificates representing Trust Preferred Securities held by DTC or its nominee
(or any successor Clearing Agency or its nominee), will be deemed to represent
beneficial interests in the Debentures having an aggregate principal amount
equal to the aggregate stated liquidation amount of $_______, with an interest
rate of _____% [if on or prior to ________________________, and at the Reset
Rate thereafter,] and accrued and unpaid interest equal to accrued and unpaid
Distributions on such Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissue.
(6) Redemption or Distribution Procedures.
(a) Notice of any redemption (other than in connection with
the maturity of the Debentures) of, or notice of distribution of Debentures in
exchange for, the Securities (a "Redemption/Distribution Notice") will be given
by the Property Trustee by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be the
Tax Event Redemption Date. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 6(a), a Redemption/Distribution Notice
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shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of Securities
at the address of each such Holder appearing in the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(b) If Securities are to be redeemed and the Property Trustee
gives a Redemption/Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 6 (such notice will be
irrevocable), then (A) while the Trust Preferred Securities are in book-entry
only form, with respect to the Trust Preferred Securities, by 12:00 noon, New
York City time, on the redemption date, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures by 10:00 A.M. New York City
time on such Redemption Date, the Property Trustee will deposit irrevocably with
DTC or its nominee (or any successor Clearing Agency or its nominee), [the
Purchase Contract Agent or the Collateral Agent, as applicable,] funds
sufficient to pay the applicable Redemption Price with respect to the Trust
Preferred Securities and will give DTC, [the Purchase Contract Agent or the
Collateral Agent, as applicable,] irrevocable instructions and authority to pay
the Redemption Price to the Holders of the Trust Preferred Securities so called
for redemption, and (B) with respect to Trust Preferred Securities issued in
definitive form and Common Securities, provided that the Debenture Issuer has
paid the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property Trustee will pay
the relevant Redemption Price to the Holders of such Securities by check mailed
to the address of the relevant Holder appearing on the books and records of the
Trust. Notwithstanding the foregoing, so long as the Holder of any Trust
Preferred Securities is the Collateral Agent or the Purchase Contract Agent, the
payment of the Redemption Price in respect of such Trust Preferred Securities
held by the Collateral Agent or the Purchase Contract Agent shall be made no
later than 12:00 noon, New York City time, on the Tax Event Redemption 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 or the Purchase Contract
Agent. If a Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to the close of
business on the date of such deposit, or on the redemption date, as applicable,
distributions will cease to accumulate on the Securities so redeemed and all
rights of Holders of such Securities so called for redemption will cease, except
the right of the Holders of such Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Administrative Trustees
nor the Trust shall be required to register or cause to be registered the
transfer of any Securities that have been so called for redemption. If any date
fixed for redemption of Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay) except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the Property Trustee or by
the Sponsor as guarantor pursuant to the relevant Securities Guarantee,
Distributions on such Securities will continue to accumulate from the original
redemption date to the actual date of payment, in which case the actual payment
date will be considered the date fixed
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for redemption for purposes of calculating the Redemption Price and such
Securities shall cease to be outstanding.
(c) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) in respect of the Trust Preferred
Securities, DTC or its nominee (or any successor Clearing Agency or its nominee)
if the Global Certificates have been issued or, if Definitive Trust Preferred
Security Certificates have been issued, to the Holder thereof, and (B) in
respect of the Common Securities, to the Holder thereof.
(d) Subject to the foregoing and applicable law (including,
without limitation, U.S. federal securities laws) the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding Trust
Preferred Securities by tender, in the open market or by private agreement.
[(7) Repayment at Option of Holders.]
[(a) If a Failed Remarketing (as described in Section 5.3(b)
of the Purchase Contract Agreement and incorporated herein by reference) has
occurred, each holder of Securities who holds such Securities on the day
immediately following the Purchase Contract Settlement Date, shall have the
right to require the Trust to repay all or a portion of such Securities owned by
such holder (the "Put Option") on __________________________ (the "Put Option
Exercise Date"), upon at least three Business Days' prior notice, at a repayment
price of $_________ per Security plus an amount equal to the accrued and unpaid
Distributions thereon to the date of payment (the "Put Option Repayment Price").
(b) The Trust shall obtain funds to pay the Put Option
Repayment Price of Securities being repaid under the Put Option through
presentation by the Property Trustee, on behalf of the Trust, to the Debenture
Issuer, pursuant to the right of the holder of the Debentures to require the
Debenture Issuer to repay all or a portion of the Debentures on the Put Option
Exercise Date, Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Securities for repayment on the Put
Option Exercise Date at the Debenture Repayment Price.
(c) In order for the Securities to be repaid on the Put Option
Exercise Date, the Trust must receive on or prior to 4:00 p.m. on the third
Business Day immediately preceding the Put Option Exercise Date, at the
Corporate Trust Office of the Property Trustee, the Securities to be repaid with
the form entitled "Option to Elect Repayment" on the reverse thereof or
otherwise accompanying such 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 Securities for repayment shall
be determined by the Trust, whose determination shall be final and binding.
(d) Payment of the Put Option Repayment Price to Holders of
Securities shall be made at the Corporate Trust Office of the Property Trustee,
provided that the Property Trustee has received from the Debenture Issuer a
sufficient amount of cash in connection with the related repayment of the
Debentures 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
A-11
account as may be designated by such Holders. If the Property Trustee holds
immediately available funds sufficient to pay the Put Option Repayment Price of
such Securities, then, immediately prior to the close of business on the Put
Option Exercise Date, such Securities will cease to be outstanding and
distributions thereon will cease to accumulate, whether or not Securities are
delivered to the Property Trustee, and all other rights of the Holder in respect
of the Securities, including the Holder's right to require the Trust to repay
such 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 Administrative Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities for which
repayment has been elected. If payment of the Put Option Repayment Price in
respect of Securities is (i) improperly withheld or refused and not paid either
by the Property Trustee or by the Sponsor as guarantor pursuant to the
Securities Guarantees, or (ii) not paid by the Property Trustee as the result of
an Event of Default with respect to the Debentures presented for repayment as
described in paragraph 6(b), Distributions on such Securities will continue to
accumulate, 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.
(e) The Debenture Issuer will request, not later than 10 nor
more than 15 calendar days prior to ___________________ (the date on which some
or all of the Trust Preferred Securities could be remarketed in the manner
described in Section 5.3(b) of the Purchase Contract Agreement and incorporated
herein by reference) that DTC notify the Trust Preferred Securities Holders of
such remarketing and of the procedures that must be followed if a Holder of
Trust Preferred Securities wishes to exercise such Holder's rights with respect
to the Put Option.]
(8) Voting Rights - Trust Preferred Securities.
(a) Except as provided under Sections 8(b) and 10 and as
otherwise required by law and the Agreement, including these Terms and
Conditions, the Holders of the Trust Preferred Securities will have no voting
rights.
(b) Subject to the requirements set forth in this paragraph,
the Holders of a Majority in liquidation amount of the Trust Preferred
Securities, acting separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or the exercise of any trust or power conferred upon the Property Trustee under
the Agreement, including (i) directing the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or exercising
any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waiving any past default and its consequences that is waivable
under the Indenture, (iii) exercising any right to rescind or annul a Agreement
that the principal of all the Debentures shall be due and payable, or (iv)
consenting to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required, provided, however, that, where
a consent or action under the Indenture specifically would require the consent
or act of the Holders of greater than a majority of the Holders in principal
amount of Debentures affected thereby (a "Super Majority"), the Property Trustee
may only give such consent or take such action at the written direction of the
Holders of at least the proportion in liquidation amount of the Trust Preferred
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. The Property
A-12
Trustee shall not revoke any action previously authorized or approved by a vote
of the Holders of the Trust Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy available to the
Property Trustee or the Debenture Trustee as set forth above, the Property
Trustee shall not take any action in accordance with the directions of the
Holders of the Trust Preferred Securities under this paragraph unless the
Property Trustee has obtained an opinion of tax counsel to the effect that for
the purposes of U.S. federal income tax the Trust will not be classified as
other than a grantor trust on account of such action. If the Property Trustee
fails to enforce its rights under the Debentures after a Holder of Trust
Preferred Securities has made a written request, such Holder of Trust Preferred
Securities may, to the fullest extent permitted by applicable law, institute a
legal proceeding directly against the Debenture Issuer [or the Debenture
Guarantor, as the case may be,] to enforce the Property Trustee's rights under
the Debentures without first instituting a legal proceeding against the Property
Trustee or any other Person. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer [or the Debenture Guarantor, as the case may
be,] to pay interest or principal on the Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), then a Holder of Trust Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Trust Preferred Securities of such Holder on or after
the respective due date specified in the Debentures. Except as provided in the
preceding sentence, the Holders of Trust Preferred Securities shall not exercise
directly any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of Trust Preferred
Securities may be given at a separate meeting of Holders of Trust Preferred
Securities convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The Administrative
Trustees will cause a notice of any meeting at which Holders of Trust Preferred
Securities are entitled to vote to be mailed to each Holder of record of Trust
Preferred Securities. Each such notice will include a statement setting forth
(i) the date of such meeting, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote and (iii)
instructions for the delivery of proxies.
No vote or consent of the Holders of the Trust Preferred
Securities will be required for the Trust to repay and cancel Trust Preferred
Securities or to distribute the Debentures in accordance with the Agreement and
the terms of the Securities. Notwithstanding that Holders of Trust Preferred
Securities are entitled to vote or consent under any of the circumstances
described above, any of the Trust Preferred Securities that are owned by the
Sponsor or any Affiliate of the Sponsor shall not be entitled to vote or consent
and shall, for purposes of such vote or consent, be treated as if they were not
outstanding
(9) Voting Rights - Common Securities.
(a) Except as provided under Sections 9(b), 9(c) and 10 and as
otherwise required by law and the Agreement, including these Terms and
Conditions, the Holders of the Common Securities will have no voting rights.
A-13
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Agreement, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Agreement and only after any
Event of Default with respect to the Trust Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct 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 the Agreement, including (i) directing the time, method, and place
of conducting any proceeding for any remedy available to the Debenture Trustee,
or exercising any trust or power conferred on the Debenture Trustee with respect
to the Debentures, (ii) waive any past default and its consequences that is
waivable under the Indenture, or (iii) exercise any right to rescind or annul a
Agreement that the principal of all the Debentures shall be due and payable,
provided that, where a consent or action under the Indenture specifically would
require the consent or act of the Holders of a Super Majority, the Property
Trustee may only give such consent or take such action at the written direction
of the Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this Section 8(c),
the Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Trust Preferred Securities. Other than
with respect to directing the time, method and place of conducting any remedy
available to the Property Trustee or the Debenture Trustee as set forth above,
the Property Trustee shall not take any action in accordance with the directions
of the Holders of the Common Securities under this paragraph unless the Property
Trustee has obtained an opinion of tax counsel to the effect that for the
purposes of U.S. federal income tax the Trust will not be classified as other
than a grantor trust on account of such action. If the Property Trustee fails to
enforce its rights under the Agreement, any Holder of Common Securities may
institute a legal proceeding directly against any Person to enforce the Property
Trustee's rights under the Agreement, without first instituting a legal
proceeding against the Property Trustee or any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Administrative Trustees will cause a notice of
any meeting at which Holders of Common Securities are entitled to vote to be
mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Agreement and the terms of the
Securities.
(10) Amendments to Agreement and Indenture.
A-14
(a) In addition to any requirements under Section 12.1 of the
Agreement, if any proposed amendment to the Agreement provides for, or the
Administrative Trustees otherwise propose to effect, (i) any action that would
materially adversely affect the powers, preferences or special rights of the
Securities, whether by way of amendment to the Agreement or otherwise, or (ii)
the dissolution of the Trust, other than as described in Section 8.1 of the
Agreement or these Terms and Conditions, then the Holders of outstanding
Securities as a class will be entitled to vote on such amendment or proposal
(but not on any other amendment or proposal) and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Securities, voting together as a single
class; provided, however, if any amendment or proposal referred to in clause (i)
above would adversely affect only the Trust Preferred Securities or only the
Common Securities, then only the affected 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 a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Property Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination on the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture specifically
would require a Super Majority, the Property Trustee may only give such consent
at the direction of the Holders of at least the proportion in liquidation amount
of the Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided, further, that the
Property Trustee shall not take any action in accordance with the directions of
the Holders of the Securities under this Section 10(b) unless (i) the Property
Trustee has obtained an opinion of tax counsel to the effect that for the
purposes of U.S. federal income tax the Trust will not be classified as other
than a grantor trust on account of such action or (ii) such action would not
reduce or otherwise adversely affect powers of the Property Trustee or cause the
Trust to be deemed an "investment company" which is required to be registered
under the Investment Company Act of 1940.
(11) Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Agreement has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the Trust
Preferred Securities pro rata according to the aggregate liquidation amount of
Trust Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Trust Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Trust Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
A-15
(12) Ranking.
The Trust Preferred Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except that, where an
Event of Default occurs and is continuing under the Indenture in respect of the
Debentures held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Trust Preferred Securities.
(13) Acceptance of Securities Guarantee and Indenture.
Each Holder of Trust Preferred Securities and Common
Securities by the acceptance thereof, agrees to the provisions of the Trust
Preferred Securities Guarantee and the Common Securities Guarantee,
respectively.
(14) No Preemptive Rights.
The Holders of the Securities shall have no preemptive or
other similar rights to subscribe for any additional securities.
(15) Additional Provisions
[Include additional provisions for conversion, exchange or
otherwise, if any.]
(16) Miscellaneous.
These terms constitute a part of the Agreement.
The Sponsor will provide a copy of the Agreement, the Trust
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request to
the Sponsor at its principal place of business.
IN WITNESS WHEREOF, the undersigned has caused these Terms and
Conditions to be executed as of ________________________.
-----------------------------------------
, Administrative Trustee
---------------
of the Trust
-----------------------------------------
, Administrative Trustee
---------------
A-16
EXHIBIT A-I
FORM OF TRUST PREFERRED SECURITY CERTIFICATE
[NOTE: This is a form of Trust Preferred Security Certificate. The actual Trust
Preferred Security Certificate may vary substantially from this form, as
contemplated by Section 7.1(b) of the form of Amended and Restated
Trust
Agreement.]
[IF THE TRUST PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT -
This Trust Preferred Security is a Global Certificate within the meaning of the
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depositary") or a nominee of the Depositary. This
Trust Preferred Security is exchangeable for Trust Preferred Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Agreement and no transfer of this
Trust Preferred Security (other than a transfer of this Trust Preferred Security
as a whole by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Trust Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the Trust or its agent for registration of transfer, exchange or
payment, and any Trust Preferred Security issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
The Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
Certificate Number __________ Number of Trust Preferred Securities
_________________
CUSIP NO______________
Certificate Evidencing Trust Preferred Securities
of Apache Trust [I/II]
____% Trust Preferred Securities
(liquidation amount $_____ per Trust Preferred Security)
Apache Trust [I/II], a statutory trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that __________________ (the
"Holder") is the registered owner of _________________ Trust Preferred
securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust designated as the ______% Trust Preferred Securities
(liquidation amount $______ per Trust Preferred security) (the "Trust Preferred
Securities"). The
A1-1
Trust Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Trust Preferred Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Trust
Agreement of the Trust dated as of __________________, as the same may be
amended from time to time (the "Agreement"), including the designation of the
terms of the Trust Preferred Securities as set forth in Exhibit A to the
Agreement. Capitalized terms used herein but not defined shall have the meaning
given them in the Agreement. The Holder is entitled to the benefits of the Trust
Preferred Securities Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Agreement, the Trust Preferred Securities Guarantee and
the Indenture to a Holder without charge upon written request to the Trust at
its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Agreement
and is entitled to the benefits thereunder.
[In addition, the Holder is deemed to have (i) agreed to the terms of
the Indenture and the Debentures, including that the Debentures are subordinate
and junior in right of payment to all present and future Senior Indebtedness (as
defined in the Indenture) as and to the extent provided in the Indenture and
(ii) agreed to the terms of the Trust Preferred Securities Guarantee, including
that the Trust Preferred Securities Guarantee is subordinate and junior in right
of payment to all other liabilities of the Sponsor, including the Debentures,
except those made pari passu or subordinate by their terms, and pari passu with
the most senior preferred or preference stock now or hereafter issued by the
Sponsor and with any guarantee now or hereafter entered into by the Sponsor in
respect of any preferred or preference stock of any Affiliate of the Sponsor.]
By acceptance, the Holder agrees to treat, for U.S. federal income tax
purposes, the Debentures as indebtedness and the Trust Preferred Securities as
evidence of indirect beneficial ownership in the Debentures.
Unless the Property Trustee's Certificate of Authentication hereon has
been properly executed, the Trust Preferred Securities evidenced by this
Certificate shall not be entitled to any benefit under the Agreement or be valid
or obligatory for any purpose.
A1-2
IN WITNESS WHEREOF, the Trust has executed this certificate this
________ day of _________________________.
APACHE TRUST [I/II]
By:
--------------------------------------
Name:
------------------------------------
Title: Administrative Trustee
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Preferred Securities referred to in the
within-mentioned Agreement.
Dated: ,
------ ------
JPMORGAN CHASE BANK,
as Property Trustee
By:
--------------------------------------
Authorized Signatory
A1-3
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Trust Preferred Security will be fixed at
a rate per annum of ____% (the "Coupon Rate") of the stated liquidation amount
of $_____ per Trust Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the rate of _____% [until [____________________], and at the Reset
Rate thereafter] (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has actually received and holds
funds available therefor. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of a
360-day year consisting of twelve 30-day months, and for any period shorter than
a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 30-day month.
Except as otherwise described below, Distributions on the Trust
Preferred Securities will be cumulative, will accumulate from the date of
original issuance and will be payable quarterly in arrears, on
[_____________________________________________ of each year, commencing on
___________________], _______________to holders of record, if in book-entry only
form, one Business Day prior to such payment date, which payment dates shall
correspond to the interest payment dates on the Debentures. In the event that
the Trust Preferred Securities are not in book-entry form, the record date will
conform to the rules of any securities exchange on which the securities are
listed and, if none, as shall be selected by the Administrative Trustees, which
dates will be more than one, but less than 60, Business Days before the relevant
payment date, which date shall correspond to the interest payment dates of the
Debentures. [The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to time
on the Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), provided that no Extension Period shall last beyond the
date of the maturity of the Debentures and, as a consequence of such deferral,
quarterly Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity of
the Debentures. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.]
The Trust Preferred Securities shall be redeemable as provided in the
Agreement.
A1-4
[OPTION TO ELECT REPAYMENT]
[The undersigned hereby irrevocably requests and instructs the Trust to
repay $______ stated liquidation amount of the within Trust Preferred Security,
pursuant to its terms, on the "Put Option Exercise Date," together with
distributions thereon accrued but unpaid to the date of repayment, to the
undersigned at:
------------------------------------
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Agreement, a new
Trust Preferred Security or Trust Preferred Securities representing the
remaining stated liquidation amount of this Trust Preferred Security.
For this Option to Elect Repayment to be effective, the within Trust Preferred
Security with this Option to Elect Repayment duly completed must be received by
the Trust at the [Corporate Trust Office] of the Property Trustee at JPMorgan
Chase Bank, __________________, New York, New York _____________, Attention:
[Corporate Trust Administration].
Dated: Signature:
-------------------------------
Signature Guarantee:
---------------------
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Trust Preferred Security in every
particular without alternation or enlargement or any change whatsoever.]
A1-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust
Preferred Security Certificate to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Trust Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Dated: Signature:
-------------------------------
Signature Guarantee:
---------------------
(Sign exactly as your name appears on the other side of this Trust Preferred
Security Certificate)
A1-6
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
[NOTE: This is a form of Common Security Certificate. The actual Common Security
Certificate may vary substantially from this form, as contemplated by Section
7.1(b) of the form of Amended and Restated
Trust Agreement.]
The Common Securities may only be transferred by the Debenture Issuer
and any Related Party to the Debenture Issuer or a Related Party of the
Debenture Issuer; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for U.S. federal income tax
purposes as a grantor Trust; and
(ii) the Trust would be an Investment Company or the transferee would
become an Investment Company.
Certificate Number ____________ Number of Trust Preferred Securities
_______________
CUSIP NO._____________
Certificate Evidencing Common Securities
of
Apache Trust [I/II]
Common Securities
(liquidation amount $_____ per Common Security)
Apache Trust [I/II], a statutory trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that
Apache Corporation (the
"Holder") is the registered owner of _____ common securities of the Trust
representing common undivided beneficial interests in the assets of the Trust
designated as the _____% Common Securities (liquidation amount $____ per common
security) (the "Common Securities"). The Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated
Trust Agreement of the Trust dated as of ____________, 20[ ], as the
same may be amended from time to time (the "Agreement"), including the
designation of the terms of the Common Securities as set forth in Exhibit A to
the Agreement. Capitalized terms used herein but not defined shall have the
meaning given them in the Agreement. The Holder is entitled to the benefits of
the Common Securities Guarantee to the extent provided therein. The Sponsor
A2-1
will provide a copy of the Agreement, the Common Securities Guarantee and the
Indenture to a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the Agreement
and is entitled to the benefits thereunder.
[In addition, the Holder is deemed to have (i) agreed to the terms of
the Indenture and the Debentures, including that the Debentures are subordinate
and junior in right of payment to all present and future Senior Indebtedness (as
defined in the Indenture) as and to the extent provided in the Indenture and
(ii) agreed to the terms of the Common Securities Guarantee, including that the
Common Securities Guarantee is subordinate and junior in right of payment to all
other liabilities of the Sponsor, including the Debentures, except those made
pari passu or subordinate by their terms, and pari passu with the most senior
preferred or preference stock now or hereafter issued by the Sponsor and with
any guarantee now or hereafter entered into by the Sponsor in respect of any
preferred or preference stock of any Affiliate of the Sponsor.]
By acceptance, the Holder agrees to treat, for U.S. federal income tax
purposes, the Debentures as indebtedness and the Common Securities as evidence
of indirect beneficial ownership in the Debentures.
A2-2
IN WITNESS WHEREOF, the Trust has executed this certificate this
________ day of _________________________.
APACHE TRUST [I/II]
By:
--------------------------------------
Name:
Title: Administrative Trustee
A2-3
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of _____% (the "Coupon Rate") of the stated liquidation amount of
$_______ per Common Security, such rate being the rate of interest payable on
the Debentures to be held by the Property Trustee. Distributions in arrears for
more than one quarter will bear interest thereon compounded quarterly at the
rate of _____% [until [__________________________________], and at the Reset
Rate thereafter] (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the Property
Trustee and to the extent the Property Trustee has actually received and holds
funds available therefor. The amount of Distributions payable for any period
will be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
per 30-day month.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accumulate from the date of original
issuance and will be payable quarterly in arrears, on
[___________________________ of each year, commencing on________________],
________________, to Holders of record one Business Day prior to such payment
dates, which payment dates shall correspond to the interest payment dates on the
Debentures. [The Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period from time to time
on the Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"), provided that no Extension Period shall last beyond the
date of the maturity of the Debentures and, as a consequence of such deferral,
quarterly Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity of
the Debentures. Payments of accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.]
The Common Securities shall be redeemable as provided in the Agreement.
A2-4
[OPTION TO ELECT REPAYMENT]
[The undersigned hereby irrevocably requests and instructs the Trust to
repay $______ stated liquidation amount of the within Common Security, pursuant
to its terms, on the "Put Option Exercise Date," together with distributions
thereon accrued and unpaid to the date of repayment, to the undersigned at:
----------------------------------------
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the Agreement, a new
Common Security or Common Securities representing the remaining stated
liquidation amount of this Common Security.
For this Option to Elect Repayment to be effective, the within Common Security
with this Option to Elect Repayment duly completed must be received by the Trust
at the [Corporate Trust Office] of the Property Trustee at JPMorgan Chase Bank,
New York, New York, Attention: [Corporate Trust Administration].
Dated: Signature:
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Signature Guarantee:
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Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Common Security in every particular
without alternation or enlargement or any change whatsoever.]
A2-5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Dated: Signature:
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Signature Guarantee:
---------------------
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
A2-6
