EXHIBIT 4 (f)
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AMENDED AND RESTATED
TRUST AGREEMENT
among
XXXXX NATIONAL CORPORATION,
as Depositor,
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
AND THE HOLDERS OF TRUST SECURITIES
Dated as of March 12, 1997
Xxxxx Capital II
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TABLE OF CONTENTS
ARTICLE I
Defined Terms.................................... 2
Section 1.1. Definitions......................................................... 2
ARTICLE II.
Continuation of the Trust............................... 12
Section 2.1. Name................................................................ 12
Section 2.2. Office of the Delaware Trustee; Principal Place of Business......... 12
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses............................................................ 12
Section 2.4. Issuance of the Preferred Securities................................ 13
Section 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.............................................. 13
Section 2.6. Declaration of Trust................................................ 13
Section 2.7. Authorization to Enter into Certain Transactions.................... 14
Section 2.8. Assets of Trust..................................................... 18
Section 2.9. Title to Trust Property............................................. 18
ARTICLE III.
Payment Account...................................... 18
Section 3.1. Payment Account..................................................... 18
ARTICLE IV.
Distributions; Redemption................................ 19
SECTION 4.1. Distributions....................................................... 19
SECTION 4.2. Redemption.......................................................... 20
Section 4.3. Subordination of Common Securities.................................. 22
Section 4.4. Payment Procedures.................................................. 23
Section 4.5. Tax Returns and Reports............................................. 23
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust......................... 23
Section 4.7. Payments under Indenture or Pursuant to Direct Actions.............. 24
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ARTICLE V.
Trust Securities.................................................................. 24
Section 5.1. Initial Ownership.................................................... 24
Section 5.2. The Preferred Securities............................................. 24
Section 5.3. Execution and Delivery of Trust Securities........................... 25
Section 5.4. Global Preferred Securities.......................................... 25
Section 5.5. Registration, Registration of Transfer and
Exchange of Preferred Securities generally;
Certain Transfer and Exchanges; Securities
Act Legends.......................................................... 27
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.............................................. 31
Section 5.7. Persons Deemed Securityholders....................................... 31
Section 5.8. Access to List of Securityholders' Names and Addresses............... 31
Section 5.9. Maintenance of Office or Agency...................................... 31
Section 5.10. Appointment of Paying Agent......................................... 32
Section 5.11. Ownership of Common Securities by Depositor......................... 32
Section 5.12. Notices to Clearing Agency.......................................... 33
Section 5.13. Temporary Preferred Securities...................................... 33
Section 5.14. Rights of Securityholders........................................... 33
ARTICLE VI.
Acts of Securityholders; Meetings; Voting......................................... 36
Section 6.1. Limitations on Voting Rights......................................... 36
Section 6.2. Notice of Meetings................................................... 37
Section 6.3. Meetings of Preferred Securityholders................................ 37
Section 6.4. Voting Rights........................................................ 37
Section 6.5. Proxies, etc......................................................... 38
Section 6.6. Securityholder Action by Written Consent............................. 38
Section 6.7. Record Date for Voting and Other Purposes............................ 38
Section 6.8. Acts of Securityholders.............................................. 38
Section 6.9. Inspection of Records................................................ 39
ARTICLE VIII.
The Trustees.................................... 43
Section 8.1. Certain Duties and Responsibilities.................................. 43
Section 8.2. Certain Notices...................................................... 44
Section 8.3. Certain Rights of Property Trustee................................... 45
Section 8.4. Not Responsible for Recitals or Issuance of Securities............... 47
Section 8.5. May Hold Securities.................................................. 47
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Section 8.6. Compensation; Indemnity; Fees....................................... 47
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees........ 48
Section 8.8. Conflicting Interests............................................... 49
Section 8.9. Co-Trustees and Separate Trustee.................................... 49
Section 8.10. Resignation and Removal; Appointment of Successor.................. 51
Section 8.11. Acceptance of Appointment by Successor............................. 52
Section 8.12. Merger, Conversion, Consolidation or Succession to Business........ 53
Section 8.13. Preferential Collection of Claims Against Depositor or Trust....... 53
Section 8.14. Reports by Property Trustee........................................ 54
Section 8.15. Reports to the Property Trustee.................................... 55
Section 8.16. Evidence of Compliance with Conditions Precedent................... 55
Section 8.17. Number of Trustees................................................. 55
Section 8.18. Delegation of Power................................................ 56
ARTICLE IX.
Termination, Liquidation and Merger............................ 56
Section 9.1. Termination Upon Expiration Date.................................... 56
Section 9.2. Early Termination................................................... 56
Section 9.3. Termination......................................................... 57
Section 9.4. Liquidation......................................................... 57
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust. 59
ARTICLE X.
Miscellaneous Provisions.............................. 60
Section 10.1. Limitation of Rights of Securityholders............................ 60
Section 10.2. Amendment.......................................................... 60
Section 10.3. Separability....................................................... 61
Section 10.5. Payments Due on Non-Business Day................................... 62
Section 10.6. Successors......................................................... 62
Section 10.7. Headings........................................................... 62
Section 10.8. Reports, Notices and Demands....................................... 62
Section 10.9. Agreement Not to Petition.......................................... 63
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act............ 63
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture... 64
SECTION 10.12. Counterparts...................................................... 64
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Xxxxx Capital II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
((S)) 310 (a)(1).............................. 8.7
(a)(2).............................. 8.7
(a)(3).............................. 8.9
(a)(4).............................. 2.7(a)(ii)
(b)................................. 8.8
((S)) 311 (a)................................. 8.13
(b)................................. 8.13
((S)) 312 (a)................................. 5.7
(b)................................. 5.7
(c)................................. 5.7
((S)) 313 (a)................................. 8.14(a)
(a)(4).............................. 8.14(b)
(b)................................. 8.14(b)
(c)................................. 10.8
(d)................................. 8.14(c)
((S)) 314 (a)................................. 8.15
(b)................................. Not Applicable
(c)(1).............................. 8.16
(c)(2).............................. 8.16
(c)(3).............................. Not Applicable
(d)................................. Not Applicable
(e)................................. 1.1, 8.16
((S)) 315 (a)................................. 8.1(a), 8.3(a)
(b)................................. 8.2, 10.8
(c)................................. 8.1(a)
(d)................................. 8.1, 8.3
(e)................................. Not Applicable
((S)) 316 (a)................................. Not Applicable
(a)(1)(A)........................... Not Applicable
(a)(1)(B)........................... Not Applicable
(a)(2).............................. Not Applicable
(b)................................. 5.14
(c)................................. 6.7
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((S)) 317 (a)(1).............................. Not Applicable
(a)(2).............................. Not Applicable
(b)................................. 5.9
((S)) 318 (a)................................. 10.10
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Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of March 12, 1997,
among (i) Xxxxx National Corporation, a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) The Bank of New York, a banking
corporation organized under the laws of the State of New York, as property
trustee (in each such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) The Bank of New York (Delaware), a banking corporation organized under the
laws of the State of Delaware, as Delaware trustee (the "Delaware Trustee"),
(iv) Xxxxxxx X. Xxxxxxxx, an individual, and Xxxxx X. Xxxxxx, an individual,
each of whose address is c/x Xxxxx National Corporation, 0000 Xxxxxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 (each an "Administrative Trustee" and
collectively, the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust, Xxxxx Capital II, pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of March 5, 1997 (the "Original Trust Agreement"), and by the execution
and filing by the Property Trustee and the Delaware Trustee with the Secretary
of State of the State of Delaware of the Certificate of Trust, filed on March 4,
1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures and
(iv) the appointment of the Administrative Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, as hereinafter defined, hereby
amends and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I
Defined Terms
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trustee Agreement solely in
such Person's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security, the rules and procedures of
the Clearing Agency for such Global Preferred Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the appropriate Trustee.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
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"Capital Treatment Event" means the reasonable determination by the
Depositor that, as a result of the occurrence of 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 thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or decision
is announced on or after the date of issuance of the Preferred Securities
hereunder, there is more than an insubstantial risk that the Depositor will not
be entitled, subsequent to the effectiveness of such amendment or change or the
announcement of such pronouncement, action or decision, to treat as "Tier I
Capital" (or the then equivalent thereof) a portion of the Liquidation Amount of
the Preferred Securities substantially equal to or greater than the portion
thereof it was entitled to treat as "Tier I Capital" (or the then equivalent
thereof) immediately prior to the effectiveness of such amendment or change or
the announcement of such pronouncement, action or decision for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Depositor.
"Certificate Depositary Agreement" means the agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, as the same may
be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified in the recitals
hereof.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Time" has the meaning specified in the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this
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Trust Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit B.
"Corporate Trust Office" means (i) when used with respect to the
Property Trustee, the principal corporate trust office of the Property Trustee
located in New York, New York, and (ii) when used with respect to the Debenture
Trustee, the principal corporate trust office of the Debenture Trustee located
in New York, New York.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to
be redeemed under the Indenture, the date fixed for redemption under the
Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The Bank of New York, a banking corporation
organized under the laws of the State of New York, and any successor thereto, as
trustee under the indenture.
"Debentures" means the aggregate principal amount of the Depositor's
8% Junior Subordinated Deferrable Interest Debentures, Series C, issued
pursuant to the Indenture.
"Definitive Preferred Security" means a Preferred Security issued in
certificated, fully registered form (non-global) as provided in Section 5.2, 5.4
or 5.12, substantially in the form set forth in Exhibit C-2.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ((S)) 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
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"Early Termination Event" has the meaning specified in Section 9.2.
"DTC" means the Depository Trust Company (or any successor securities
clearing agency).
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust entered into on March 12, 1997.
"Expiration Date" has the meaning specified in Section 9.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System, as from time to time constituted, or if at any time after the execution
of this agreement the Federal Reserve is not existing in performing the duties
now assigned to it, then the body performing such duties at such time.
"Global Preferred Security" means a Preferred Security, the ownership
and transfers of which shall be made through book entries by a Clearing Agency
as described in Section 5.4.
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"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and The Bank of New York, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the Holders
of the Preferred Securities, as amended from time to time.
"Holder" mean a Person in whose name a Trust Security or Trust
Securities are registered in the Securities Register; any such person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as of March
12, 1997, between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture, allocated to the Trust Securities pro rata based
upon the relative Liquidation Amounts of such Trust Securities and the proceeds
of which will be used to pay the Redemption Price of such Trust Securities, and
(b) with respect to a distribution of Debentures to Holders of Trust Securities
in exchange therefor in connection with a dissolution or liquidation of the
Trust, Debentures having a principal amount equal to the Liquidation Amount of
the Trust Securities of the Holder to whom such Debentures would be distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section
9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with
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respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, but not an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee.
"Original Preferred Securities" has the meaning specified in Section
2.4.
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as
of the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that, if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand,
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authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a beneficial
interest in a Global Preferred Security as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the beneficial
owner, then as reflected in the records of a Person maintaining an account with
such Clearing Agency (directly or indirectly, in accordance with the rules of
such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be The Bank of New York.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee at The Bank of New York in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Securityholders in
accordance with Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Purchase Agreement" means the Purchase Agreement, dated as of March
7, 1997, among the Trust, the Depositor and the Initial Purchaser named therein.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust heretofore formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as herein provided.
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"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant treasurer, or any other officer
of the Property Trustee assigned by the Property Trustee to administer its
corporate trust matters.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Preferred Securities Legend" means a legend substantially
in the form of the legend required in Exhibit D to be placed upon the Preferred
Securities.
"Rule 144A Global Preferred Security" means a Global Preferred
Security that bears the Rule 144A Preferred Securities Legend.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.5.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act; provided, however, that in determining whether the
Holders of the requisite amount of Preferred Securities have voted on any matter
provided for in this Trust Agreement, then for the purpose of any such
determination, so long as Definitive Preferred Securities certificates have not
been issued, the term Securityholders or Holders as used herein shall refer to
the Owners.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced proposed change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of
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any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Trust Agreement, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days after the
date of such Opinion of Counsel, subject to United States federal income tax
with respect to income received or accrued on the Debentures, (ii) interest
payable by the Depositor on the Debentures is not, or within 90 days after the
date of such Opinion of Counsel, will not be, deductible by the Depositor, in
whole or in part, for United States federal income tax purposes or (iii) the
Trust is, or will be within 90 days after the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties, assessments or
other governmental charges. With respect to Debentures that are no longer held
by the Trust or another issuer, "Tax Event" means the receipt by the Corporation
of an opinion of counsel experienced in such matters to the effect that, as a
result of any amendment to, or change (including any announced proposed change)
in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of issuance of the Debentures under the Indenture, there is more than an
insubstantial risk that interest payable by the Depositor on the Debentures is
not, or within 90 days of the date of such opinion will not be, deductible by
the Depositor, in a whole or in part, for United States federal income tax
purposes (each of the circumstances referred to in clauses (i), (ii) and (iii)
of the preceding sentence being referred to herein as an "Adverse Tax
Consequence").
"Transfer Agent" means any agent appointed by the Depositor for the
purpose of effecting book-entry transfers through the Clearing Agency of
interests in a Rule 144A Global Preferred Security for interests in an
Unrestricted Global Preferred Security.
"Trust" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including (i) all exhibits hereto and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
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"Trust Property" means (a) the Debentures, (b) any cash on deposit in,
or owing to, the Payment Account and (c) all proceeds and rights in respect of
the foregoing and any other property and assets for the time being held or
deemed to be held by the Property Trustee pursuant to the trusts of this Trust
Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Unrestricted Global Preferred Security" means a Global Preferred
Security representing registered Preferred Securities or other securities not
"restricted securities" as defined under Rule 144A of the Securities Act.
"Unrestricted Securities Certification" means a certificate
substantially in the form set forth in Exhibit E.
ARTICLE II.
Continuation of the Trust
Section 2.1. Name.
The Trust continued hereby shall be known as "Xxxxx Capital II", as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may engage in the transactions contemplated
hereby, make and execute contracts and other instruments on behalf of the Trust
and xxx and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is x/x
Xxx Xxxx xx Xxx Xxxx (Delaware), Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/x Xxxxx National Corporation, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000.
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Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.4. Issuance of the Preferred Securities.
On March 7, 1997 the Depositor, on behalf of the Trust and pursuant to
the Original Trust Agreement, executed and delivered the Purchase Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Initial Purchaser named in the Purchase
Agreement, Preferred Securities certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of 200,000
Preferred Securities having an aggregate Liquidation Amount of $200,000,000,
against receipt of such aggregate purchase price of such Preferred Securities of
$200,000,000, which amount such Administrative Trustee shall promptly deliver to
the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription and
Purchase of Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
6,186 Common Securities having an aggregate Liquidation Amount of $6,186,000
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Property Trustee and having an aggregate principal amount equal to
$206,186,000, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $206,186,000 (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the first
sentence of this Section 2.5).
Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to invest in the
Debentures and (b) to
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engage in those activities necessary or incidental thereto. The Depositor hereby
appoints the Trustees as trustees of the Trust, to have all the rights, powers
and duties to the extent set forth herein, and the Trustees hereby accept such
appointment. The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
benefit of the Trust and the Securityholders. The Administrative Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to
the following matters:
(A) the issuance and sale of the Trust Securities;
(B) without the consent of any Person to cause the Trust to
enter into, and to execute, deliver and perform on behalf of the
Trust, the Expense Agreement, the Registration Rights Agreement
and the Certificate Depositary Agreement and such other agreements
as may be necessary or desirable in connection with the purposes
and function of the Trust;
(C) assisting, in connection with the Registration Rights
Agreement, in the registration of the Preferred Securities under
the Securities Act of 1933, as amended (including executing the
Registration Statement), and under state securities or blue sky
laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(D) assisting in the registration or listing, if any, of the
Preferred Securities on such national securities exchange or
exchanges or automated quotation system or systems as shall be
determined by the Depositor and the
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registration of the Preferred Securities under the Securities
Exchange Act of 1934, as amended, and the preparation, executing
and filing of all periodic and other reports and other documents
pursuant to the foregoing;
(E) the sending of notices (other than notices of default)
and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust
Agreement;
(F) the appointment of a Paying Agent, authenticating agent
and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in
accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees, or as otherwise
required by the Delaware Business Trust Act or the Trust Indenture
Act, to execute on behalf of the Trust (either acting alone or
together with any or all of the Administrative Trustees) any
documents that the Administrative Trustees have the power to
execute pursuant to this Trust Agreement;
(J) assisting in the designation of the Preferred Securities
for trading in the Private Offering, Resales and Trading through
the Automatic Linkages (PORTAL) system; and
(K) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
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(C) the collection of interest, principal (and premium, if
any) and any other payments made in respect of the Debentures in
the Payment Account;
(D) the distribution through the Paying Agent of amounts
owed to the Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph
(b), (c), (d) or (e) of the definition of such term if such Event
of Default is by or with respect to the Property Trustee) the
taking of any ministerial action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust Agreement
and protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder); and
(J) except as otherwise provided in this Section 2.7(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth
in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" or cause the Trust to be
classified as a corporation for United States federal income tax purposes, (iv)
incur any indebtedness for borrowed
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money or issue any other debt or (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation by the Trust of an Offering Memorandum
in relation to the Preferred Securities and the preparation and filing
by the Trust with the Commission and the execution on behalf of the
Trust of a registration statement on the appropriate form in relation
to the Preferred Securities, including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and the advice to the Trustees of actions they must take on behalf of
the Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such states or other applicable
jurisdictions in connection with the sale of the Preferred Securities;
(iii) the preparation for filing by the Trust and execution
on behalf of the Trust of an application to The Depository Trust
Company or any trading facility or exchange for registration or
listing upon notice of issuance of any Preferred Securities and filing
with such exchange such notifications and documents as may be
necessary from time to time to maintain such listing;
(iv) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Registration Rights Agreement, the Purchase Agreement
providing for the sale of the Preferred Securities and the negotiation
of the terms of and execution and delivery of, on behalf of the Trust,
the Purchase Agreement and such other
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agreements as may be necessary or desirable in connection with the
consummation thereof; and
(vi) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, and will not
be classified as other than a grantor trust or as an association taxable as a
corporation for United States federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that each of
the Depositor and any Administrative Trustee determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the holders of the
Preferred Securities.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III.
Payment Account
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Time, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All moneys and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
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(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of, premium (if any) or
interest on, and any other payments or proceeds with respect to, the Debentures.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in
the Trust Property, and Distributions (including Additional Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative, and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions shall
accrue from March 12, 1997 and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, shall be payable
semi-annually in arrears on June 30 and December 31 of each year,
commencing on June 30, 1997. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then
the payment of such Distribution shall be made on the next succeeding
day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Distribution shall
be made on the immediately preceding Business Day, in each case with
the same force and effect as if made on such date (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) Assuming payments of interest on the Debentures are
made when due (and before giving effect to Additional Amounts, if
applicable), the Trust Securities shall be entitled to Distributions
payable at a rate of 8% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any full
semi-annual period shall be computed on the basis of a 360-day year of
twelve 30-day months. The amount of Distributions for any partial
period shall be computed on the basis of the number of days elapsed in
a 360-day year of twelve 30-day months. The amount of Distributions
payable for any period shall include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on
each Distribution Date
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only to the extent that the Trust has funds then on hand and
immediately available in the Payment Account for the payment of such
Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be, for so long as the Preferred Securities remain in book-entry-only
form, one Business Day prior to such Distribution Date; provided, however, that
in the event that the Preferred Securities are not in book-entry-only form, the
relevant record date shall be the June 15 and December 15 next preceding the
relevant Distribution Date.
Section 4.2. Redemption.
(a) On any Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total Liquidation Amount of
the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accrue on and after said
date.
(vi) the place or places where the Trust Securities are to
be surrendered for the payment of the Redemption Price.
The Trust in issuing the Trust Securities may use "CUSIP" or "private
placement" numbers (if then generally in use), and, if so, the Property Trustee
shall indicate the "CUSIP" or "private placement" numbers of the Trust
Securities in notices of redemption and related materials as a convenience to
Securityholders; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as
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