EXHIBIT 4.2
DRAFT 11/17/95
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AMENDED AND RESTATED
TRUST AGREEMENT
among
THE XXXXX COMPANY, as Depositor,
and
THE FIRST NATIONAL BANK OF CHICAGO, as Property Trustee,
XXXXXXX X. XXXXXXXXX, as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of _________, 1995
XXXXX CAPITAL
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TABLE OF CONTENTS
Page
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ARTICLE I
Defined Terms
Section 1.01. Definitions............................................................... 2
ARTICLE II
Establishment of the Trust
Section 2.01. Name...................................................................... 11
Section 2.02. Principal Place of Business of the Trust.................................. 11
Section 2.03. Initial Contribution of Trust Property; Organizational Expenses........... 11
Section 2.04. Issuance of the Preferred Securities...................................... 11
Section 2.05. Subscription and Purchase of Debentures; Issuance of the Common Securities 12
Section 2.06. Declaration of Trust...................................................... 12
Section 2.07. Authorization to Enter into Certain Transactions.......................... 13
Section 2.08. Assets of Trust........................................................... 16
Section 2.09. Title to Trust Property................................................... 17
ARTICLE III
Payment Account
Section 3.01. Payment Account........................................................... 17
ARTICLE IV
Distributions; Redemption
Section 4.01. Distributions............................................................. 17
Section 4.02. Redemption................................................................ 18
Section 4.03. Subordination of Common Securities........................................ 21
Section 4.04. Payment Procedures........................................................ 21
Section 4.05. Tax Returns and Reports................................................... 21
Section 4.06 Payment of Taxes, Duties, Etc. of the Trust............................... 22
Section 4.07 Payments Under Indenture..................................................
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ARTICLE V
Trust Securities Certificates
Section 5.01. Initial Ownership......................................................... 22
Section 5.02. The Trust Securities Certificates......................................... 22
Section 5.03. Delivery of Trust Securities Certificates................................. 23
Section 5.04. Registration of Transfer and Exchange of Preferred Securities Certificates 23
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates........ 24
Section 5.06. Persons Deemed Securityholders............................................ 24
Section 5.07. Access to List of Securityholders' Names and Addresses.................... 24
Section 5.08. Maintenance of Office or Agency........................................... 25
Section 5.09. Appointment of Paying Agent............................................... 25
Section 5.10. Ownership of Common Securities by Depositor............................... 26
Section 5.11. Book-Entry Interests; Common Securities Certificate....................... 26
Section 5.12. Notices to Clearing Agency................................................ 27
Section 5.13. Definitive Preferred Securities Certificates.............................. 27
Section 5.14. Rights of Securityholders................................................. 28
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights............................................. 28
Section 6.02. Notice of Meetings....................................................... 29
Section 6.03. Meetings of Preferred Securityholders.................................... 29
Section 6.04. Voting Rights............................................................ 30
Section 6.05. Proxies, Etc............................................................. 30
Section 6.06. Securityholder Action by Written Consent................................. 30
Section 6.07. Record Date for Voting and Other Purposes................................ 31
Section 6.08. Acts of Securityholders.................................................. 31
Section 6.09. Inspection of Records.................................................... 32
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Page
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ARTICLE VII
Representations and Warranties of the Bank,
the Property Trustee, the Administrative Trustees
and the Delaware Trustee
ARTICLE VIII
The Trustees
Section 8.01. Certain Duties and Responsibilities...................................... 34
Section 8.02. Notice of Defaults....................................................... 35
Section 8.03. Certain Rights of Property Trustee....................................... 35
Section 8.04. Not Responsible for Recitals or Issuance of Securities................... 37
Section 8.05. May Hold Securities...................................................... 37
Section 8.06. Compensation; Fees; Indemnity............................................ 37
Section 8.07. Corporate Property Trustee Required; Eligibility of Trustees............. 37
Section 8.08. Conflicting Interests.................................................... 38
Section 8.09. Co-Trustees and Separate Trustee......................................... 38
Section 8.10. Resignation and Removal; Appointment of Successor........................ 40
Section 8.11. Acceptance of Appointment by Successor................................... 41
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.............. 42
Section 8.13. Preferential Collection of Claims Against Depositor or Trust............. 42
Section 8.14. Reports by Property Trustee.............................................. 42
Section 8.15. Reports to the Property Trustee.......................................... 43
Section 8.16. Evidence of Compliance with Conditions Precedent......................... 43
Section 8.17. Number of Trustees....................................................... 43
Section 8.18. Delegation of Power...................................................... 44
Section 8.19. Outside Business......................................................... 44
ARTICLE IX
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date......................................... 45
Section 9.02. Early Termination........................................................ 45
Section 9.03. Termination.............................................................. 45
Section 9.04. Liquidation.............................................................. 45
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Page
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ARTICLE X
Miscellaneous Provisions
Section 10.01. Limitation of Rights of Securityholders................................. 47
Section 10.02. Amendment............................................................... 49
Section 10.03. Agreement to be Bound................................................... 49
Section 10.04. Separability............................................................ 49
Section 10.05. Governing Law........................................................... 49
Section 10.06. Successors.............................................................. 49
Section 10.07. Headings................................................................ 49
Section 10.08. Notice and Demand....................................................... 49
Section 10.09. Agreement Not to Petition............................................... 50
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.................. 50
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
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Xxxxx Capital
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) ......................... 8.07
(a)(2) ......................... 8.07
(a)(3) ......................... 8.09
(a)(4) ......................... Not Applicable
(b) ......................... 8.08, 8.10
(S) 311(a) ......................... 8.13
(b) ......................... 8.13
(S) 312(a) ......................... 5.07
(b) ......................... 5.07
(c) ......................... 5.07
(S) 313(a) ......................... 8.14(a)
(b) ......................... 8.14(b)
(c) ......................... 8.14(a), 8.14(b)
(d) ......................... 8.14(c)
(S) 314(a) ......................... 8.15
(b) ......................... Not Applicable
(c)(1) ......................... 8.16
(c)(2) ......................... 8.16
(c)(3) ......................... 8.16
(d) ......................... Not Applicable
(e) ......................... 1.01
(S) 315(a) ......................... 8.01
(b) ......................... 8.02, 8.14(b)
(c) ......................... 8.01(a)
(d) ......................... 8.01, 8.03
(S) 316(a) ......................... Not Applicable
(a)(1)(A) ......................... Not Applicable
(a)(1)(B) ......................... Not Applicable
(a)(2) ......................... Not Applicable
(b) ......................... Not Applicable
(c) ......................... Not Applicable
(S) 317(a)(1) ......................... Not Applicable
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Trust Indenture Trust Agreement
Act Section Section
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(a)(2) ......................... Not Applicable
(b) ......................... 5.09
(S) 318(a) ......................... 10.10
Note: This reconciliation and tie 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 ____________ __,
1995, among (i) The Xxxxx Company, a Maryland corporation, as depositor (the
"Depositor" or "Xxxxx"), (ii) The First National Bank of Chicago, a national
banking association, as trustee (the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) Xxxxxxx X. Xxxxxxxxx, an individual, as Delaware trustee (the "Delaware
Trustee"), (iv) Xxxxxxx X. Xxxxxxx, an individual, Xxxxxxxx X. Xxxxxx, an
individual, and Xxxxxx X. Xxxxxxxx, an individual, each of whose address is c/o
The Xxxxx Company, 00000 Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000
(each an "Administrative Trustee" and referred to collectively as 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:
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WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
have heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of September 29, 1995 (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 September 29, 1995, attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee
desire to amend and restate the Original Trust Agreement as set forth herein to
provide for, among other things, (i) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures (as defined
herein), (ii) the issuance and sale of the Common Securities (as defined herein)
by the Trust to the Depositor, (iii) the issuance and sale of the Preferred
Securities (as defined herein) by the Trust pursuant to the Underwriting
Agreement (as defined herein) 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 receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other party and for the benefit of the Securityholders (as defined herein),
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
ARTICLE I
Defined Terms
Section 1.01. Definitions. For all purposes of this Trust Agreement,
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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 (as defined herein), 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 6.08.
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"Additional Amount" means, with respect to Trust Securities of a given
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Liquidation Amount (as defined herein) and/or a given period, the amount of
Additional Interest Attributable to Deferral (as defined in the Subordinated
Indenture) paid by the Depositor on a Like Amount of Debentures for such period.
"Administrative Trustee" means each of the individuals identified as
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an "Administrative Trustee" in the preamble to this Trust Agreement solely in
his or her capacity as Administrative Trustee of the Trust heretofore formed and
continued hereunder and not in his or her individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor Administrative Trustee appointed as herein provided.
"Affiliate" of any specified Person (as defined herein) means any
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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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"Bank" has the meaning specified in the preamble to this Trust
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Agreement.
"Bankruptcy Event" means, with respect to any Person:
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(i) a decree or order is entered by a court having jurisdiction in
the premises (a) for relief in respect of such Person in an involuntary
case or proceeding under any of the Bankruptcy Laws or (b) adjudging such
Person a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of such Person under any of the
Bankruptcy Laws, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of such Person or of any
substantial part of any of its properties, or ordering the winding up or
liquidation of any of its affairs, and any such decree or order remains
unstayed and in effect for a period of 60 consecutive days; or
(ii) such Person institutes a voluntary case or proceeding under any
of the Bankruptcy Laws or any other case or proceeding to be adjudicated a
bankrupt or insolvent, or such Person consents to the entry of a decree or
order for relief in respect of such Person in any involuntary case or
proceeding under any of the Bankruptcy Laws or to the institution of
bankruptcy or insolvency proceedings against such Person, or such Person
files a petition or answer or consent seeking reorganization or relief
under any of the Bankruptcy Laws, or consents to the filing of any such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of any such Person or of any substantial part of its property, or
makes an assignment for the benefit of creditors, or admits in writing its
inability to pay its debts generally as they become due or takes corporate
action in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
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"Board Resolution" means a copy of a resolution certified by the
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Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors or a duly authorized committee thereof to
be in full force and effect on the date of such certificate and delivered to the
Property Trustee.
"Book-Entry Interest" means a beneficial interest in a Global
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Certificate, ownership and transfers of which shall be made through book entries
by a Clearing Agency (as defined herein) as described in Section 5.11.
"Business Day" means a day other than (x) a Saturday or a Sunday, (y)
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a day on which banks in the State of Maryland or The City of New York are
authorized or
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obligated by law or executive order to remain closed or (z) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's principal
corporate trust office is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust
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(as defined herein), the Property Trustee and The Depository Trust Company, as
the initial Clearing Agency, dated as of the Closing Date (as defined herein),
relating to the Trust Certificates, substantially in the form attached as
Exhibit B, as the same may be amended and supplemented from time to time.
"Certificate of Trust" means the Certificate of Trust referred to in
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the recitals to this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
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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
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financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the First Time of Delivery as defined in the
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Underwriting Agreement (as defined herein), which date is also the date of
execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
"Commission" means the Securities and Exchange Commission, as from
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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
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of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
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ownership of Common Securities, substantially in the form attached as Exhibit C.
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"Corporate Trust Office" means the principal office of the Property
----------------------
Trustee located in New York, New York.
"corporation" means a corporation, association, company, including
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without limitation, a limited liability company, joint-stock company or business
trust.
"Debenture Event of Default" means an "Event of Default" as defined in
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the Subordinated Indenture.
"Debenture Redemption Date" means "Redemption Date" as defined in the
-------------------------
Subordinated Indenture.
"Debenture Trustee" means The First National Bank of Chicago, a
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national banking association.
"Debentures" means the $_________ aggregate principal amount (or up to
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$___________ aggregate principal amount if and to the extent the overallotment
option granted by the Trust to the underwriters of the Preferred Securities is
exercised) of Xxxxx'x ___% Junior Subordinated Debentures due 2025, issued
pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates" means Preferred
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Securities Certificates issued in certificated, fully registered form as
provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
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Delaware Code, 12 Del. C. (S) 3801, et seq., as it may be amended from time to
------- -- ---
time.
"Delaware Trustee" means the individual identified as the "Delaware
----------------
Trustee" in the preamble to this Trust Agreement solely in his capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in his
individual capacity, or his successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
---------
Agreement and includes Xxxxx in its capacity as Holder (as defined herein) of
the Common Securities.
"Distribution Date" has the meaning specified in Section 4.01(a).
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"Distributions" means amounts payable in respect of the Trust
-------------
Securities as provided in Section 4.01.
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"Event of Default" means the occurrence of a Debenture Event of
----------------
Default (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).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
-----------------
between Xxxxx and the Trust, substantially in the form attached as Exhibit D, as
amended from time to time.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
-----------------------
United States Code, as amended from time to time.
"Global Certificate" has the meaning specified in Section 5.11.
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"Guarantee" means the Guarantee Agreement executed and delivered by
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Xxxxx and The First National Bank of Chicago, a national banking association, 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.
"Indemnified Person" has the meaning specified in Article VII.
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"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 (i) Trust Securities having an aggregate
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Liquidation Amount equal to the principal amount of Debentures to be
contemporaneously redeemed in accordance with the Subordinated Indenture and the
proceeds of which will be used to pay the Redemption Price (as defined herein)
of such Trust Securities, or (ii) Debentures having a principal amount equal to
the aggregate Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed, as the case may be.
"Liquidation Amount" means the stated liquidation amount of $25 per
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Trust Security.
"Liquidation Date" means the date on which Debentures are to be
----------------
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
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9.04(d).
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"Officers' Certificate" means a certificate signed by (i) the
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Chairman, a Vice Chairman, the President, a Vice President or the Treasurer of
the Depositor and (ii) the Secretary or an Assistant Secretary of the Depositor,
and delivered to the appropriate Trustee; provided, however, that such
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certificate may be signed by two of the officers or directors listed in clause
(i) above in lieu of being signed by one of such officers or directors listed in
such clause (i) and one of the officers listed in clause (ii) above. One of the
officers signing an Officers' Certificate given pursuant to Section 8.15 shall
be the principal executive, financial or accounting officer of the Depositor.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
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counsel for the Trust, the Property Trustee or the Depositor, and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals
------------------------
to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
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as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
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(i) Preferred Securities theretofore canceled by the Administrative
Trustees or delivered to the Administrative Trustees for cancellation;
(ii) Preferred 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 Preferred Securities;
provided that, if such
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Preferred Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement;
(iii) Preferred Securities which have been issued in exchange for
or in lieu of which other Preferred Securities have been authenticated and
delivered pursuant to this Trust Agreement; and
(iv) Preferred Securities exchanged for Debentures pursuant to
Section 9.04;
provided, however, that in determining whether the Holders of the requisite
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aggregate Liquidation Amount of the Outstanding Preferred Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities which such Trustee knows to
be so owned shall be so disregarded and (b) the foregoing shall not apply at any
time when all of the Outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Administrative
Trustees the pledgee's right so to act with respect to such Preferred Securities
and that the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
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Interest as reflected in the records of the Clearing Agency or, if a Clearing
Agency Participant is not the Owner, then as reflected in the records of a
Person maintaining an account with such Clearing Agency (directly or indirectly,
in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
------------
pursuant to Section 5.09 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate
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trust account maintained by the Property Trustee with the Bank 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 shall
make payments to the Securityholders in accordance with Section 4.01.
"Person" means any individual, corporation, partnership, joint
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venture, trust, company, including without limitation, a limited liability
company, association,
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joint stock company, business trust 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 $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
--------------------------------
ownership of Preferred Securities, substantially in the form attached as Exhibit
E.
"Property Trustee" means the commercial bank or trust company
----------------
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.
"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
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of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Redemption Date of any
----------------
Trust Security, the Liquidation Amount of such Trust Security, plus accumulated
and unpaid Distributions to such date, whether or not earned or declared.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
----------------
"Securities Register" and "Securities Registrar" have the respective
------------------- --------------------
meanings specified in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
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Security or 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.
"Subordinated Indenture" means the Indenture, dated as of ________,
----------------------
1995, between Xxxxx and the Debenture Trustee, as trustee, as amended or
supplemented from time to time.
"Tax Event" means the receipt by the Trust or the Depositor, as the
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case may be, of an Opinion of Counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, clarification of, or change
(including any announced prospective change) in, the laws or treaties (or any
regulations thereunder) of the United
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States or any political subdivision or taxing authority thereof or therein
affecting taxation, or (b) any judicial decision, official administrative
pronouncement, ruling, regulatory procedure, notice or announcement (including
any notice or announcement of intent to adopt such procedures or regulations)
("Administrative Action"), or (c) any amendment to, clarification of, or change
in the official position or the interpretation of such Administrative Action or
judicial decision or any interpretation or pronouncement that provides for a
position with respect to such Administrative Action or judicial decision that
differs from the theretofore generally accepted position, in each case, by any
legislative body, court, governmental authority or regulatory body, irrespective
of the manner in which such amendment, clarification or change is made known,
which amendment, clarification, or change is effective or such pronouncement or
decision is announced on or after the Closing Date, there is more than an
insubstantial risk that (i) the Trust is, or will be, subject to United States
federal income tax with respect to interest received on the Debentures, (ii)
interest payable by the Depositor on the Debentures is not, or will not be,
fully deductible for United States federal income tax purposes, or (iii) the
Trust is, or will be, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Trust" means the Delaware business trust created and continued hereby
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and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
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the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, 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.
"Trustees" has the meaning specified in the preamble to this Trust
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Agreement.
"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,
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that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii) any cash on deposit
--------------
in, or owing to, the Payment Account and (iii) 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 terms of this
Trust Agreement.
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"Trust Security" means any one of the Common Securities or the
--------------
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
----------------------------
Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
----------------------
_________, 1995, among the Trust, Xxxxx and the underwriters named therein.
ARTICLE II
Establishment of the Trust
Section 2.01. Name. The Trust created and continued hereby shall be
----
known as "Xxxxx Capital", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.02. Principal Place of Business of the Trust. The
----------------------------------------
principal place of business of the Trust is c/o The Xxxxx Company, 00000 Xxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000.
Section 2.03. Initial Contribution of Trust Property; Organizational
------------------------------------------------------
Expenses. The Property Trustee acknowledges receipt 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 2.04. Issuance of the Preferred Securities. On _________,
------------------------------------
1995 the Depositor, on behalf of the Trust and pursuant to the Original Trust
Agreement, executed and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, the Administrative
Trustees, on behalf of the Trust, shall execute and deliver Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of _________ Preferred Securities having an
aggregate Liquidation Amount of $ _________ against receipt of the aggregate
purchase price of such Preferred Securities of $__________, which amount the
Administrative Trustees shall promptly deliver to the Property Trustee. In the
event and to the extent the overallotment option granted by the Trust pursuant
to the Underwriting Agreement is exercised, the Administrative Trustees, on
behalf of the
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Trust, shall execute and deliver Preferred Securities Certificates, registered
in the name of the nominee of the initial Clearing Agency, in an aggregate
amount of up to an additional __________ Preferred Securities having an
aggregate Liquidation Amount of up to $__________ against receipt of the
aggregate purchase price of such Preferred Securities of up to $___________,
which amount the Administrative Trustees shall promptly deliver to the Property
Trustee, on the date specified pursuant to the Underwriting Agreement.
Section 2.05. Subscription and Purchase of Debentures; Issuance of
----------------------------------------------------
the Common Securities. Contemporaneously with the execution and delivery of
---------------------
this Trust Agreement, (x) the Administrative Trustees, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount equal to
$___________, 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 $__________, and (y) the Administrative Trustees, on behalf of the Trust,
shall execute and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of __________
Common Securities having an aggregate Liquidation Amount of $__________ and, in
satisfaction of the purchase price for such Common Securities, the Depositor
shall deliver to the Trust the sum of $__________. In the event the
overallotment option granted by the Trust with respect to the Preferred
Securities pursuant to the Underwriting Agreement is exercised by the
underwriters named therein, (x) the Administrative Trustees, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Debentures, registered
in the name of the Trust and having an aggregate principal amount of up to
$__________, and, in satisfaction of the purchase price for such Debentures, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor an
amount equal to 100% of the aggregate principal amount of the Debentures being
purchased and (y) contemporaneously therewith, the Administrative Trustees, on
behalf of the Trust, shall execute and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount (determined on a pro rata basis to the extent the overallotment
--- ----
option is exercised) of up to ______ Common Securities having an aggregate
Liquidation Amount of up to $__________ and, in satisfaction of the purchase
price for such Common Securities, the Depositor shall deliver to the Trust an
amount equal to 3% of the aggregate principal amount of the Debentures being
purchased.
Section 2.06. Declaration of Trust. The exclusive purposes of the
--------------------
Trust are (a) to issue and sell Trust Securities, (b) to purchase the Debentures
with the proceeds from the sale of the Preferred Securities and Common
Securities and (c) to engage in those activities necessary or incidental
thereto. The Depositor hereby appoints the Trustees, as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein, and
the Trustees hereby accept such appointment. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders. The
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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 2.07. 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 (c) of this Section, and in accordance with the following provisions
(A) and (B), the Administrative Trustees and the Property Trustee shall have the
authority to enter into all transactions and agreements determined by such
Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to such Trustees under this Trust Agreement, and to perform
all acts in furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) the issuance and sale of the Trust Securities;
(ii) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of the
Trust;
(iii) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(iv) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Exchange Act and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
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(v) 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;
(vi) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(vii) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(viii) 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;
(ix) 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; and
(x) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary, advisable or
convenient 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).
(B) 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:
(i) the establishment and maintenance of the Payment Account;
(ii) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of the Trust Agreement as a trust
indenture under this Trust Indenture Act;
(iii) the receipt of the Debentures;
(iv) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
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(v) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(vi) 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;
(vii) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(viii) 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; and
(ix) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary or advisable
to give effect to the terms of this Trust Agreement and protect and
conserve the Trust Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
(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
(other than the Debentures as provided for herein) or engage in any activities
not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange,
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 be deemed an "investment
company" required to be registered under the Investment Company Act of 1940, as
amended, or treated as an association taxable as a corporation for United States
federal income tax purposes, (iv) incur any indebtedness for borrowed money or
(v) take or consent to any action that would result in the placement of a Lien
on any of the Trust Property. The 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 as actions of
the Trust):
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(i) to prepare for filing with the Commission a registration
statement on Form S-3 in relation to the Preferred Securities, including
any amendments thereto (and any related registration statement under Rule
462(b) of the Securities Act of 1933, as amended from time to time);
(ii) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Preferred Securities and
to do any and all such acts, other than actions which must be taken by or
on behalf of the Trust, and advise the Trustees of actions they must take
on behalf of the Trust, and prepare for execution and filing any documents
to be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary, advisable or convenient in order to comply with
the applicable laws of any such States;
(iii) to prepare for filing by 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 Preferred
Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto;
(v) to negotiate the terms of, and execute and deliver, the
Underwriting Agreement providing for the sale of the Preferred Securities;
and
(vi) 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 Investment Company Act
of 1940, as amended, or taxed 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 the Depositor or any of the Administrative Trustees determines
in its discretion to be necessary, desirable or convenient for such purposes, as
long as such action does not adversely affect the interests of the holders of
the Preferred Securities.
Section 2.08. Assets of Trust. The assets of the Trust shall consist
---------------
of the Trust Property.
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Section 2.09. 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 3.01. Payment Account.
---------------
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal 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 4.01. Distributions.
-------------
(a) 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 __________, 1995,
and, except in the event that Xxxxx exercises its right to extend the interest
payment period for the Debentures pursuant to Section 301 of the Subordinated
Indenture, shall be payable quarterly in arrears on March 31, June 30, September
30 and December 31 of each year, commencing on _____________, 1995. If any date
on which Distributions are 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 which 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
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made on such date (each date on which Distributions are payable in
accordance with this Section 4.01(a) a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the assets of the Trust, and, subject to Section 4.03 hereof, all Distributions
will be made pro rata on each of the Trust Securities; Distributions payable as
a preference on the Preferred Securities shall be fixed at a rate of __% per
annum of the Liquidation Amount of the Preferred Securities. The amount of
Distributions payable for any full quarterly period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for any period shorter
than a full monthly period, shall be computed on the basis of the actual number
of days elapsed in such period. The amount of Distributions payable for any
period shall include Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
funds legally and immediately available in the Payment Account for the payment
of such Distributions.
(d) 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 (the
"Record Date"), which shall be one Business Day prior to such Distribution Date;
provided, however, that in the event that the Preferred Securities do not remain
-------- -------
in book-entry-only form, the Record Date shall be the date 15 days prior to the
relevant Distribution Date, whether or not a Business Day.
Section 4.02. Redemption.
----------
(a) On each Debenture Redemption Date, the Trust will be required to
redeem a Like Amount of Trust Securities at the Redemption Price.
(b) If (i) a Tax Event shall occur and be continuing and (ii) within
45 days following the occurrence of such Tax Event the Trustees shall not have
received from the Debenture Trustee a notice of redemption of all of the
Debentures on a Debenture Redemption Date (as specified in such notice) which is
to occur not later than 90 days following the occurrence of such Tax Event, the
Depositor may in its sole discretion direct the Trustees to, and the Trustees
shall if so directed by the Depositor, dissolve the Trust and cause the Trust to
distribute in accordance with Section 9.04 to each Holder of Trust Securities,
on a Liquidation Date which shall occur not later than 90 days following the
occurrence of such Tax Event, a Like Amount of Debentures in liquidation of the
Trust; provided, however, that the Trustees shall be required to follow the
-------- -------
direction of the Depositor to dissolve the Trust and distribute the Debentures
to Holders of Trust Securities in accordance with this Section 4.02(b) and
Section 9.04 only
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if the Trust shall have received an Opinion of Counsel experienced in such
matters to the effect that the Holders of Preferred Securities will not
recognize any gain or loss for United States federal income tax purposes as a
result of such distribution. The election of the Depositor to cause the Trust to
be dissolved shall be evidenced by a Board Resolution. If the Trust is not
dissolved pursuant to this Section 4.02 and the Trust Securities remain
Outstanding, then Additional Interest Attributable to Taxes (as defined in the
Subordinated Indenture) will be payable on the Debentures.
(c) 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 identify the Trust Securities to be redeemed (including CUSIP
number) and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place or payment where such Trust Securities are to be
surrendered for payment of the Redemption Price; and
(iv) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
interest thereon will cease to accrue on and after said date.
(d) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be deemed payable on each Redemption Date only to the
extent that the Trust has funds legally and immediately available in the Payment
Account for the payment of such Redemption Price.
(e) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities (which notice will be irrevocable), then, by 12:00
noon, New York time, on the Redemption Date, subject to Section 4.02(d), the
Property Trustee shall, so long as the Preferred Securities are in book-entry-
only form, irrevocably deposit with the Clearing Agency for the Preferred
Securities funds sufficient to pay the applicable Redemption Price and, at the
direction of the Depositor, shall give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
If the Preferred Securities are no longer in book-entry-only-form, the Property
Trustee, subject to Section 4.02(d), shall irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and shall give the
Paying Agent irrevocable instructions to pay the Redemption Price to the Holders
thereof upon
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surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price, but without interest on such
Redemption Price, and such Securities will cease to be Outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on the
next succeeding day which 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. In the event that payment of the Redemption
Price in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will continue
to accrue from the Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for redemption for purposes
of calculating the Redemption Price.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated to the Common Securities and the
Preferred Securities on a pro rata basis based upon their respective aggregate
Liquidation Amount. The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or any integral multiple thereof) of the aggregate Liquidation
Amount of Preferred Securities of a denomination larger than $25. The Property
Trustee shall promptly notify the Securities Registrar in writing of the
Preferred Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or to
be redeemed only in part, to the portion of the aggregate Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
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Section 4.03. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the aggregate Liquidation Amount of
--- ----
the Trust Securities; provided, however, that if on any Distribution Date or
-------- -------
Redemption Date a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) payable as a
preference on all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities called for redemption, shall have been made or provided for, and all
funds legally and immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price of, Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Debenture Event of Default,
the Holder of Common Securities will be deemed to have waived any right to act
with respect to any Event of Default until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
Section 4.04. Payment Procedures. Payments in respect of the
------------------
Preferred Securities shall be payable at the office or agency of the Paying
Agent in The City of New York maintained for such purpose and at any other
office or agency maintained by the Paying Agent for such purpose; provided,
--------
however, that at the option of the Property Trustee, Distributions may be made
-------
by check mailed to the address of the Person entitled thereto as such address
shall appear on the Securities Register; provided further, if the Preferred
-------- -------
Securities are held by a Clearing Agency, payments shall be made to the Clearing
Agency. Payments in respect of the Common Securities shall be made in such
manner as shall be mutually agreed between the Property Trustee and the Common
Securityholder.
Section 4.05. Tax Returns and Reports. The Administrative Trustees
-----------------------
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States
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federal, state and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Administrative Trustees
shall (a) prepare and file (or cause to be prepared or filed) the Internal
Revenue Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
related Internal Revenue Service Schedule K-1 (Form 1041) Beneficiaries' Share
of Income, Deductions, Etc., or any successor form or the information required
to be provided on such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns, reports and
schedules promptly after such filing or furnishing. The Trustees shall comply
with United States federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section 4.06. Payment of Taxes, Duties, Etc. of the Trust. Upon
-------------------------------------------
receipt under the Debentures of Additional Interest Attributable to Taxes (as
defined in the Subordinated Indenture), the Property Trustee shall promptly pay
any taxes, duties, assessments or governmental charges of whatsoever nature
(other than withholding taxes) imposed on the Trust by the United States or any
other taxing authority.
Section 4.07. Payments under Indenture. Any amount payable to an
------------------------
Owner hereunder shall be reduced by the amount of any corresponding payment such
Owner has received pursuant to Section 508 of the Indenture.
ARTICLE V
Trust Securities Certificates
Section 5.01. Initial Ownership. Until the issuance of the Trust
-----------------
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02. The Trust Securities Certificates. Initial Holders
---------------------------------
shall purchase Preferred Securities in minimum denominations of $25 (based on
Liquidation Amount) and integral multiples of $25 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations
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of a Securityholder hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03. Delivery of Trust Securities Certificates. On the
-----------------------------------------
Closing Date and on any date on which Preferred Securities are required to be
delivered pursuant to the exercise of the over-allotment option provided for in
the Underwriting Agreement, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered to
or upon the written order of the Depositor signed by its Chairman, its Vice
Chairman, its Chief Executive Officer, its President or any Vice President,
without further corporate action by the Depositor, in authorized denominations.
Section 5.04. Registration of Transfer and Exchange of Preferred
--------------------------------------------------
Securities Certificates. A registrar appointed by the Administrative Trustees
-----------------------
(the "Security Registrar") shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.08, a register (the "Security Register")
in which, subject to such reasonable regulations as the Administrative Trustees
may prescribe, the Securities Registrar shall provide for the registration of
Preferred Securities Certificates and Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Bank shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees. The Securities Registrar shall not be required to register
the transfer of any Preferred Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Preferred Securities selected for redemption under
Section 4.02 hereof and ending at the closing of business on the day of such
mailing. At the option of a Holder, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred
-23-
Securities Certificate surrendered for registration of transfer or exchange
shall be canceled and subsequently disposed of by the Administrative Trustees.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Administrative Trustees
or the Securities Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
of Preferred Securities Certificates.
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
-----------------------------------------------------
Certificates. If (a) any mutilated, destroyed, lost or stolen Trust Securities
------------
Certificate shall be surrendered to the Securities Registrar, or if the
Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate and (b) there
shall be delivered to the Securities Registrar and the Administrative Trustees
such security or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Trust Securities Certificate
shall have been acquired by a bona fide purchaser, the Administrative Trustees
or any one of them on behalf of the Trust shall execute and make available for
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Trust Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Administrative Trustees or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to this Section 5.05
shall constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust, as if originally issued, whether or not the mutilated,
lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
The provisions of this Section 5.05 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Trust Securities.
Section 5.06. Persons Deemed Securityholders. Prior to due
------------------------------
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees or the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
Section 5.07. Access to List of Securityholders' Names and Addresses.
------------------------------------------------------
The Securities Registrar shall furnish or cause to be furnished (x) to the
Depositor, within 15 days after receipt by the Securities Registrar of a request
therefor from the Depositor
-24-
in writing and (y) to the Property Trustee, semiannually, and at such other
times as the Property Trustee may request in writing promptly after receipt by
the Securities Registrar of any such request, a list, in such form as the
Depositor or the Property Trustee (as applicable) may reasonably require, of the
names and addresses of the Securityholders as of the most recent Record Date. If
three or more Holders of Trust Securities Certificates apply in writing to the
Securities Registrar, and such application states that the applicants desire to
communicate with other Securityholders with respect to their rights under this
Trust Agreement or under the Trust Securities Certificates and such application
is accompanied by a copy of the communication that such applicants propose to
transmit, then the Securities Registrar shall, within five Business Days after
the receipt of such application, afford such applicants access during normal
business hours to the current list of Securityholders. Each Holder, by receiving
and holding a Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Securities Registrar accountable by reason
of the disclosure of its name and address, regardless of the source from which
such information was derived.
Section 5.08. Maintenance of Office or Agency. The Administrative
-------------------------------
Trustees shall maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustees in respect of the Trust Securities
Certificates may be served. The Administrative Trustees initially designate the
Bank, 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 for such purposes.
The Administrative Trustees shall give prompt written notice to the Depositor
and to the Securityholders of any change in the location of the Securities
Register or any such office or agency.
Section 5.09. Appointment of Paying Agent. A paying agent (the
---------------------------
"Paying Agent") appointed hereby shall make distributions to Securityholders
from the Payment Account and shall report the amounts of such distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent if such Trustees
determine in their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The
Paying Agent shall initially be the Bank, and the Paying Agent may choose any
co-paying agent that is acceptable to the Administrative Trustees, the Property
Trustee and the Depositor. Any Person acting as a Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the event
that the Bank shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Administrative Trustees
shall appoint a successor that is acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
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Administrative Trustees shall cause such successor Paying Agent or any co-paying
agent appointed by the Paying Agent to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor. On the
-------------------------------------------
Closing Date and on each other date provided for in Section 2.05, the Depositor
shall acquire, and thereafter retain, beneficial and record ownership of the
Common Securities. Any attempted transfer of the Common Securities shall be
void; provided, however, that any permitted successor of the Depositor pursuant
-------- -------
to Article VIII of the Subordinated Indenture may succeed to the Depositor's
ownership of the Common Securities. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
Section 5.11. Book-Entry Interests; Common Securities Certificate.
---------------------------------------------------
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a fully-registered typewritten global Preferred
Securities Certificate or Certificates (each, a "Global Certificate"), to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Global Certificate or Certificates shall
initially be registered on the Securities Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such Owner's beneficial
interest in such Global Certificate or Certificates, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities Certificates
have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
(ii) the Securities Registrar, the Paying Agent and the Trustees
shall be entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement (including the payment of Distributions on the Global
Certificate or Certificates
-26-
and the receiving of approvals, votes or consents hereunder) as the sole
Holder of the Preferred Securities and shall have no obligations to the
Owners of Book-Entry Interests;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Trust Agreement, the provisions
of this Section 5.11 shall control; and
(iv) the rights of the Owners of the Book-Entry Interests shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and the Clearing
Agency and/or the Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12. Notices to Clearing Agency. To the extent a notice or
--------------------------
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
Section 5.13. Definitive Preferred Securities Certificates. If (i)
--------------------------------------------
the Clearing Agency is no longer registered as a clearing agency under the
Exchange Act or the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, (ii) the Depositor at its
option advises the Trustees in writing that it elects to terminate the book-
entry system through the Clearing Agency or (iii) there is an Event of Default,
then the Clearing Agency shall notify all Owners of Book-Entry Interests and the
Trustees of the occurrence of any such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same. Upon surrender to the Administrative
Trustees of the Global Certificate or Certificates by the Clearing Agency,
accompanied by registration instructions, the Administrative Trustees, or any
one of them, shall cause the Definitive Preferred Securities Certificates to be
delivered to the Owners in accordance with the instructions of the Clearing
Agency. Neither the Securities Registrar nor the Trustees shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as Securityholders.
The Definitive Preferred
-27-
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by the execution thereof by the Administrative Trustees
or any one of them.
Section 5.14. Rights of Securityholders. The legal title to the
-------------------------
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust. The Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this Trust Agreement, but are not
interests in specific trust property. The Trust Securities shall have no
preemptive rights and when issued and delivered to Securityholders against
payment of the purchase price therefor will be fully paid and nonassessable by
the Trust. The Holders of the Preferred Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights.
----------------------------
(a) Except as provided in this Section, in Sections 8.10 and 10.02
hereof, and in the Subordinated Indenture, and as otherwise required by law, no
Holder of Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Trust or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Trust, the Property Trustee shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Debenture Trustee with
respect to such Debentures, (ii) waive any past default which is waivable under
Section 513 of the Subordinated Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Subordinated Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least a
majority in aggregate Liquidation Amount of the Outstanding
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Preferred Securities; provided, however, that where a consent under the
-------- -------
Subordinated Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of Outstanding Preferred Securities.
The Property Trustee shall not revoke any action previously authorized or
approved by a vote of the Preferred Securities, except pursuant to a subsequent
vote of the Holders of the Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice of default received
from the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Property Trustee shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as an association
taxable as a corporation for United States federal income tax purposes on
account of such action.
(c) Subject to Section 10.02(c) hereof, if any proposed amendment to
the Trust Agreement provides for, or the Trustees otherwise propose to effect,
(i) any action that would adversely affect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Preferred Securities. No amendment to
this Trust Agreement may be made if, as a result of such amendment, the Trust
would be classified as an association taxable as a corporation for United States
federal income tax purposes.
Section 6.02. Notice of Meetings. Notice of all meetings of the
------------------
Holders of the Preferred Securities, stating the time, place and purpose of the
meeting, shall be given by the Administrative Trustees in the manner provided by
Section 10.07 to each Holder of Preferred Securities of record, at his
registered address, at least 30 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be
so considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Any and all notices to which any Holders of Preferred Securities
hereunder may be entitled and any and all communications shall be deemed duly
served or given if mailed, postage prepaid, addressed to any Holder of Preferred
Securities of record at his last known address as recorded on the Securities
Register.
Section 6.03. Meetings of Preferred Securityholders. No annual
-------------------------------------
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Holders
-29-
of Preferred Securities of record of 25% of the Outstanding Preferred Securities
(based upon their aggregate Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
Holders of Preferred Securities to vote on any matters as to the which Holders
of Preferred Securities are entitled to vote.
Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Holders of Preferred
Securities.
If a quorum is present at a meeting, an affirmative vote by the
Securityholders of record present, in person or by proxy, holding more than a
majority of the Preferred Securities (based upon their Liquidation Amount) held
by the Securityholders of record present, either in person or by proxy, at such
meeting shall constitute the action of the Holders of Preferred Securities,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.04. Voting Rights. Securityholders shall be entitled to
-------------
one vote for each $25 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05. Proxies, Etc. At any meeting of Securityholders, any
-------------
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Securityholders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in Person or by proxy in
respect of such Trust Securities, but if more than one of them shall be present
at such meeting in Person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Trust Securities. A proxy purporting to be executed by or on
behalf of a Securityholder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger.
Section 6.06. Securityholder Action by Written Consent. Any action
----------------------------------------
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than a majority of all Outstanding Trust
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the action in
writing.
-30-
Section 6.07. Record Date for Voting and Other Purposes. The
-----------------------------------------
Administrative Trustees may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Administrative
Trustees prior to the first solicitation of a Holder made by any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 5.07 hereof) prior to such first solicitation or
vote, as the case may be; provided, however, that in no event shall any such
-------- -------
record date be prior to the date on which the notice of such vote or other
action is given. With regard to any record date, only the Holders on such date
(or their duly designated proxies) shall be entitled to give or take, or vote
on, the relevant action.
Section 6.08. Acts of Securityholders. Any request, demand,
-----------------------
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to an Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.01) conclusive in favor of the Trustees, if made in the manner provided in
this Section 6.08.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
In determining whether the Holders of the requisite Liquidation Amount
of outstanding Trust Securities has acted in connection with any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Trust Agreement, then for purposes of such
determination, if the Trust Securities are
-31-
registered in the form of one or more Global Securities, the Holders entitled to
act thereon shall mean the Owners of such Trust Securities.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, notice, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
This Section 6.08 shall not be deemed to supercede, or to impose
obligations in addition to, Section 6.05.
Section 6.09. Inspection of Records. Subject to Section 5.07
---------------------
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
Representations and Warranties of the Bank, the Property Trustee,
the Administrative Trustees and the Delaware Trustee
The Bank, the Property Trustee, the Administrative Trustees and the
Delaware Trustee, each severally on behalf of and as to itself or himself, as
the case may be, hereby represents and warrants for the benefit of the Depositor
and the Securityholders that:
-32-
(a) the Bank is a national banking association duly organized and
validly existing and is in good standing under the laws of the United
States;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Bank and constitutes the valid and legally binding
agreement of the Bank, enforceable against the Bank in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(d) this Trust Agreement has been duly executed and delivered by each
of the Delaware Trustee and the Administrative Trustees and constitutes the
valid and legally binding agreement of the Delaware Trustee and the
Administrative Trustees, enforceable against the Delaware Trustee and the
Administrative Trustees in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(e) the execution, delivery and performance by the Bank of this Trust
Agreement have been duly authorized by all necessary corporate action on
the part of the Bank and the Property Trustee and do not require any
approval of stockholders of the Bank and such execution, delivery and
performance will not (i) violate the Bank's charter or by-laws, (ii)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of, any Lien
on any properties included in the Trust Property pursuant to the provisions
of, any indenture, mortgage, credit agreement, license or other agreement
or instrument to which the Property Trustee or the Bank is a party or by
which it is bound, or (iii) violate any law, governmental rule or
regulation of the United States, governing the banking or trust powers of
the Bank and the Property Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Bank or the Property Trustee;
(f) the execution, delivery and performance by the Delaware Trustee
and the Administrative Trustees of this Trust Agreement will not (i)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of, any Lien
on any properties included in
-33-
the Trust Property pursuant to the provisions of any indenture, mortgage or
credit agreement, license or other agreement or instrument to which the
Delaware Trustee or any of the Administrative Trustees is a party or by
which the Delaware Trustee or any of the Administrative Trustees is bound
or (ii) violate any law, governmental rule or regulation of the United
States or the State of Delaware, as the case may be, governing the Delaware
Trustee or any of the Administrative Trustees, or any order, judgment or
decree applicable to the Delaware Trustee or the Administrative Trustees;
(g) neither the authorization, execution or delivery by the Bank, the
Delaware Trustee or the Administrative Trustees of this Trust Agreement nor
the consummation of any of the transactions by the Bank, the Property
Trustee, the Delaware Trustee or the Administrative Trustees (as
appropriate in each context) contemplated herein or therein pursuant to
this Trust Agreement require the consent or approval of, the giving of
notice to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any existing federal
law governing the banking or trust powers of the Bank, the Delaware Trustee
or any of the Administrative Trustees or under the laws of the State of
Delaware; and
(h) there are no proceedings pending or, to the best of each of the
Bank's, the Property Trustee's, the Administrative Trustees' and the
Delaware Trustee's knowledge, threatened against or affecting the Bank, the
Property Trustee, the Administrative Trustees or the Delaware Trustee in
any court or before any governmental authority, agency or arbitration board
or tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and authority
of the Bank, the Property Trustee, any of the Administrative Trustees or
the Delaware Trustee to enter into or perform its obligations as one of the
Trustees under this Trust Agreement.
The Administrative Trustees each severally hereby represents and
warrants for the benefit of the Depositor and the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been, and any Trust Securities Certificates to be
issued at the time of exercise, if any, of the over-allotment option under
the Underwriting Agreement will be duly authorized, and will have been, as
of each such date, duly and validly executed, issued and delivered by the
Administrative Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement and the
Securityholders will be, as of each such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Administrative Trustees, as
the case may be, of this Trust Agreement.
ARTICLE VIII
The Trustees
Section 8.01. Certain Duties and Responsibilities.
-----------------------------------
-34-
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the income and proceeds
from the Trust Property. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the income and proceeds from the
Trust Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust Agreement,
including without limitation as set forth under Article VII, or, in the case of
the Property Trustee, in the Trust Indenture Act, or limit the rights of Owners
pursuant to Section 508 of the Indenture.
Section 8.02. Notice of Defaults. Within five Business Days after
------------------
the occurrence of any Event of Default actually known to the Property Trustee,
the Property Trustee shall transmit, in the manner provided in Section 10.08,
notice of such Event of Default to the Securityholders, the Administrative
Trustees and the Depositor, unless such default shall have been cured or waived.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Section 8.03. Certain Rights of Property Trustee. Subject to the
----------------------------------
provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may conclusively rely upon and shall be
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
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(ii) if (A) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action or (B) in construing any of the provisions in this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (C) the Property Trustee is unsure of
the application of any provision of this Trust Agreement, then, except as
to any matter as to which the Preferred Securityholders are entitled to
vote under the terms of this Trust Agreement, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property Trustee
shall take such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from taking,
by the Depositor and shall have no liability whatsoever for such action or
inaction; provided, however, that if the Property Trustee does not receive
-------- -------
such instructions of the Depositor within ten Business Days after it has
delivered such notice, or such reasonably shorter period of time set forth
in such notice (which to the extent practicable shall not be less than two
Business Days), it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement as it shall
deem advisable and in the best interests of the Securityholders, in which
event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(iv) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document; and
(vi) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys, provided that the Property Trustee shall be
responsible for its
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own negligence or recklessness with respect to selection of any agent or
attorney appointed by it hereunder.
Section 8.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
Except as provided in Article VII, the recitals contained herein and in the
Trust Securities Certificates shall be taken as the statements of the Trust, and
the Trustees do not assume any responsibility for their correctness. The
Trustees (other than the Administrative Trustees) shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
Section 8.05. May Hold Securities. Except as provided in the
-------------------
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06. Compensation; Fees; Indemnity. The Depositor agrees:
-----------------------------
(1) to pay to the Trustees from time to time such compensation as the
Depositor and the Trustees shall from time to time agree in writing for all
services rendered by the Trustees hereunder (which compensation shall not
be limited by any provision of law with regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its bad faith,
negligence or willful misconduct; and
(3) (a) to the fullest extent permitted by applicable law, indemnify
and hold harmless (i) each Trustee, its Affiliates, officers, directors,
shareholders, employees, representatives and agents and (ii) any employee
or agent of the Trust or its Affiliates (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsover incurred by such
Indemnified Person by reason of the creation, operation or termination of
the Trust or any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Trust Agreement, except that
no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
(b) to the fullest extent permitted by applicable law, to advance,
from time to time, prior to the final disposition of any claim, demand,
action, suit or proceeding for which indemnification is authorized pursuant
to subsection (a) above, any expenses (including reasonable legal fees)
incurred by an Indemnified Person in defending such claim, demand, action,
suit or proceeding upon receipt by the Depositor of an undertaking by or on
behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in subsection (a) above. This indemnification shall survive the
termination of this Trust Agreement.
Section 8.07. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Trustees.
--------
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(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities which is eligible to act as a trustee under the
Trust Indenture Act Section 310(a)(1) and which has (a) a combined capital and
surplus of at least $50,000,000 and (b) an unsecured or deposit rating of at
least investment grade by each of Standard & Poor's Ratings Group and Xxxxx'x
Investors Service, Inc. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust Securities shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law, including the
Delaware Business Trust Act.
Section 8.08. Conflicting Interests. The Property Trustee shall
---------------------
comply with the provisions of Section 310(b) of the Trust Indenture Act. The
Property Trustee shall not be deemed to have a conflicting interest by virtue of
the Guarantee or the Subordinated Indenture.
Section 8.09. Co-Trustees and Separate Trustee. Unless an Event of
--------------------------------
Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the Holder of the Common Securities and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as co-
trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable,
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subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall satisfy the
requirements of Section 8.07.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(1) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that
under any law of any jurisdiction in which any particular act is to be
performed, the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties, and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(3) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case an Event of Default under the Subordinated
Indenture has occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with the
Property Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this
Section.
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(4) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any
other trustee hereunder.
(5) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Upon receipt of such Act of Holders, the Property Trustee shall promptly
deliver a copy thereof to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor. No
-------------------------------------------------
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time with respect to the Trust
Securities by giving written notice thereof to the Securityholders. If the
instrument of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the resigning Relevant Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee with respect to the Trust Securities.
Unless an Event of Default shall have occurred and be continuing, the
Relevant Trustee may be removed at any time by Act of the Holder of the Common
Securities. If an Event of Default shall have occurred and be continuing, the
Relevant Trustee may be removed at such time by Act of the Holders of a majority
in aggregate Liquidation Amount of the Outstanding Preferred Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust).
If the Relevant Trustee shall resign, be removed or become incapable
of continuing to act as Relevant Trustee at a time when no Event of Default
shall have occurred and be continuing, the Holder of the Common Securities, by
Act of the Holder of the Common Securities delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees with
respect to the Trust Securities and the Trust, and the retiring Relevant Trustee
shall comply with the applicable requirements of Section 8.11. If the Relevant
Trustee shall resign, be removed or become incapable of continuing to act as the
Relevant Trustee at a time when an Event of Default shall have occurred and be
continuing, the Holders of the Preferred Securities, by Act of the
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Securityholders of a majority in Liquidation Amount of the Preferred Securities
then Outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees with respect to the Trust
Securities and the Trust, and the Relevant Trustee shall comply with the
applicable requirements of Section 8.11. If no successor Relevant Trustee with
respect to the Trust Securities shall have been so appointed by the Holders of
the Common Securities or the Preferred Securities and accepted appointment in
the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee with respect to
the Trust Securities.
The retiring Relevant Trustee shall give notice of each resignation
and each removal of the Relevant Trustee with respect to the Trust Securities
and the Trust and each appointment of a successor Relevant Trustee with respect
to the Trust Securities and the Trust to all Securityholders in the manner
provided in Section 10.07 and to the Depositor. Each notice shall include the
name of the successor Relevant Trustee with respect to the Trust Securities and
the Trust and the address of its Corporate Trust Office.
In the event any Administrative Trustee or a Delaware Trustee who is a
natural person dies or becomes incompetent or incapacitated, the vacancy created
by such death, incompetence or incapacity may be filled by (i) the unanimous act
of remaining Administrative Trustees if there are at least two of them or (ii)
otherwise by the Depositor (with the successor satisfying the eligibility
requirement for an Administrative Trustee or a Delaware Trustee, as the case may
be, set forth in Section 8.07 hereof). Additionally, notwithstanding the
foregoing or any other provision of this Trust Agreement, in the event the
Depositor believes that any Administrative Trustee or the Delaware Trustee, as
the case may be, has become incompetent or incapacitated, the Depositor, by
notice to the remaining Trustees, may terminate the status of such Person as an
Administrative Trustee or the Delaware Trustee, as the case may be, (in which
case the vacancy so created will be filled in accordance with the preceding
sentence).
Section 8.11. Acceptance of Appointment by Successor. In the case of
--------------------------------------
the appointment hereunder of a successor Relevant Trustee with respect to Trust
Securities and the Trust, the retiring Relevant Trustee and each successor
Relevant Trustee so appointed shall execute and deliver an amendment hereto,
together with such other instrument or instruments as may be necessary, wherein
each successor Relevant Trustee shall accept such appointment and which
amendment (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Relevant Trustee all
the rights, powers, trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust and (2) shall add to or change any
of the provisions of this Trust Agreement as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than one
Relevant Trustee, it being
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understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees of the same trust and that each such Relevant
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Relevant Trustee;
and upon the request of the Depositor, the Trust or any successor Relevant
Trustee, such retiring Relevant Trustee shall, upon payment of its charges, duly
assign, transfer and deliver to such successor Relevant Trustee all Trust
Property (including legal title thereto, in the case of a retiring Property
Trustee), all proceeds thereof and money held by such retiring Relevant Trustee
hereunder with respect to the Trust Securities and the Trust; and upon execution
and delivery of such amendment and instrument, the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee with respect to the Trust Securities and the
Trust.
Upon request of any such successor Relevant Trustee, the
Administrative Trustees on behalf of the Trust shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article VIII.
Section 8.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any Person into which the Property Trustee or, if not a natural
--------
person, the Delaware Trustee or any Administrative Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Relevant Trustee shall be a
party, or any Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against Depositor or
------------------------------------------------------
Trust. If and when the Property Trustee shall be or become a creditor of the
-----
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
the Trust (or any such other obligor).
Section 8.14. Reports by Property Trustee.
---------------------------
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(a) Within 60 days after December 31 of each year commencing with
December 31, 1995, the Property Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear in the Securities Register,
(i) as provided in Trust Indenture Act Section 313(c), and to the Depositor, a
brief report dated as of such December 31 in accordance with and to the extent
required by Trust Indenture Act Section 313(a) and (ii) a statement that the
Property Trustee has complied with all of its obligations under this Trust
Agreement during the twelve-month period (or, in the case of the initial report,
the period since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with such obligations,
a description of such non-compliance.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each stock exchange upon which
the Trust Securities are listed, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee. The Depositor and the
-------------------------------
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance with Conditions Precedent. Each
------------------------------------------------
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c) of the Trust Indenture Act shall comply with Section 314(e) of the Trust
Indenture Act.
Section 8.17. Number of Trustees.
------------------
(a) The number of Trustees shall be five and shall consist of one
Delaware Trustee, one Property Trustee and three Administrative Trustees
(provided that the Depositor, by written instrument may increase or decrease the
number of Administrative Trustees).
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(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate from time
to time to such of their number 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 8.19 Outside Business.
-----------------
Any Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No 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 Trustee shall have the right to take for its own account
(individually as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Trustee may engage or be
interested in
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any financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act on any committee or body of holders of, securities or
other obligations of the Depositor or its Affiliates.
ARTICLE IX
Termination and Liquidation
Section 9.01. Termination Upon Expiration Date. The Trust shall
--------------------------------
automatically terminate on December 31, 2050 (the "Expiration Date") following
the distribution of the Trust Property in accordance with Section 9.04.
Section 9.02. Early Termination. Upon the first to occur of any of
-----------------
the following events (such first occurrence, an "Early Termination Event"):
(i) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(ii) the occurrence of a Tax Event and a related required redemption
of the Preferred Securities for cash or the distribution of Debentures to
Securityholders in accordance with Section 4.02(b);
(iii) the redemption of all of the Preferred Securities; and
(iv) an order for dissolution of the Trust shall have been entered
by a court of competent jurisdiction;
then the Trustees shall take such action as is required by Section 4.02 or
Section 9.04, as applicable.
Section 9.03. Termination. The respective obligations and
-----------
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (i) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.04, or upon the redemption of all of the Trust Securities
pursuant to Section 4.02, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (ii) the payment of any expenses
owed by the Trust; and (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04. Liquidation.
-----------
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(a) If an Early Termination Event specified in clause (i), (ii) (other
than a redemption of the Preferred Securities for cash) or (iv) of Section 9.02
occurs, the Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be appropriate by distributing to each Securityholder,
after satisfaction of liabilities to creditors, a Like Amount of Debentures,
subject to Section 9.04(d). Notice of liquidation shall be given by the
Administrative Trustees by first-class mail, postage prepaid, mailed not later
than 30 nor more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the Securities Register.
All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Debentures, or
if Section 9.04(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.04(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.04(d) applies, after the Liquidation Date,
(i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
Administrative Trustees or their agent for exchange, (iii) Xxxxx shall use its
reasonable efforts to have the Debentures listed on the New York Stock Exchange
or on such other exchange as the Preferred Securities are then listed and shall
take any reasonable action necessary to effect the distribution of Debentures,
(iv) any Trust Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments or
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.
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(d) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders will be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors, an amount equal
to the Liquidation Amount per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment whether or not earned or declared
(such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding-up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). The Holder of the Common
--- ----
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if an Event of Default has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities.
ARTICLE X
Miscellaneous Provisions
Section 10.01. Limitation of Rights of Securityholders. The death or
---------------------------------------
incapacity of any person having an interest, beneficial or otherwise, in a Trust
Security shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such person or any Securityholder for such
person, to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Section 10.02. Amendment.
---------
(a) This Trust Agreement may be amended from time to time by the
Administrative Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein or therein which may be inconsistent with any other provision herein or
therein, or to make any other provisions with respect to matters or questions
arising under this Trust Agreement, which shall not be inconsistent with the
other provisions of this Trust Agreement or (ii) to modify, eliminate or add to
any provisions of this Trust Agreement to such extent as shall
-47-
be necessary to ensure that the Trust will not be classified for United States
federal income tax purposes as an association taxable as a corporation at any
time that any Trust Securities are outstanding or to ensure that the Trust will
not be required to register as an "investment company" under the Investment
Company Act of 1940, as amended; provided, however, that such amendment or
-------- -------
action shall not adversely affect the rights of any Securityholder and, in the
case of clause (i), any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any provision of
this Trust Agreement may be amended by the Administrative Trustees and the
Depositor with (i) the consent of Trust Securityholders representing not less
than a majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for federal income tax purposes or cause the Trust to fail or
cease to qualify for an exemption from the status of an "investment company"
under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount, timing, place of
payment or currency of any Distribution or Liquidation Distribution on the Trust
Securities or otherwise adversely affect the amount of any Distribution or
Liquidation Distribution required to be made in respect of the Trust Securities
as of a specified date, (ii) restrict the right of a Securityholder to institute
suit for the enforcement of any such payment on or after such date, (iii) modify
the first sentence of Section 2.06 hereof, (iv) authorize or issue any interest
in the Trust other than as contemplated by this Agreement as of the date hereof,
(v) change the Redemption Price or modify the provisions of Section 4.02 hereof
or (vi) affect the limited liability of any holder of Preferred Securities;
notwithstanding any other provision herein, without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 6.03 or
6.06 hereof), the proviso in the first sentence of Section 6.01(b) hereof and
paragraphs (b) and (d) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for an exemption from
status of an "investment company" under the Investment Company Act of 1940, as
amended.
-48-
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
Section 10.03. Agreement to be Bound. Each Person, by virtue of
---------------------
having become a Securityholder or an Owner in accordance with the terms of this
Trust Agreement, shall be deemed to have expressly assented and agreed to the
terms of, and shall be bound by, this Trust Agreement, the Guarantee and the
Subordinated Indenture.
Section 10.04. Separability. In case any provision in this Trust
------------
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS
-------------
AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
Section 10.06. Successors. This Trust Agreement shall be binding
----------
upon and shall inure to the benefit of any successor to the Trust or the
Relevant Trustee or both, including any successor by operation of law.
Section 10.07. Headings. The Article and Section headings are for
--------
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08. Notice and Demand. Any notice, demand or other
-----------------
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Holder of Preferred Securities, to such Holder
of Preferred Securityholder as such Securityholder's name and address may appear
on the Securities Register and (ii) in the case of the Holder of Common
Securities or the Depositor, to The Xxxxx Company, 00000 Xxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Treasurer, facsimile no.
(000) 000-0000, with a copy to the Secretary, facsimile no. (000) 000-0000.
Such notice, demand or other communication to or upon a Securityholder shall be
deemed to have
-49-
been sufficiently given or made, for all purposes, upon hand delivery, mailing
or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee , the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (i) with respect to the Property Trustee and the
Delaware Trustee, The First National Bank of Chicago, One First Xxxxxxxx Xxxxx,
Xxxx Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Services Division with a copy to: Xxxxxxx X. Xxxxxxxxx, c/o FCC National Bank,
000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and (ii) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Xxxxx Capital c/o
Treasury Department". Such notice, demand or other communication to or upon
the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
Section 10.09. Agreement Not to Petition. Each of the Trustees and
-------------------------
the Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, reorganization, arrangement, insolvency,
liquidation or other similar law (including, without limitation, the Federal
Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. In
the event the Depositor takes action in violation of this Section 10.08, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Property Trustee
or the Trust may assert. The provisions of this Section 10.08 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture
--------------------------------------------------
Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
-50-
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
-51-
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY OWNER, WITHOUT ANY SIGNATURE OR FURTHER
MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND
PROVISIONS SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
THE XXXXX COMPANY, as Depositor
By:__________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:__________________________________________
Name:
Title:
_____________________________________________
Xxxxxxx X. Machrzak, as Delaware Trustee
---------------------------------------------
Xxxxxxx X. Xxxxxxx, as Administrative Trustee
---------------------------------------------
Xxxxxxxx X. Xxxxxx, as Administrative Trustee
---------------------------------------------
Xxxxxx X. Xxxxxxxx, as Administrative Trustee
-52-
EXHIBIT A
CERTIFICATE OF TRUST
OF
XXXXX CAPITAL
THIS CERTIFICATE OF TRUST of Xxxxx Capital (the "Trust"), dated
September 29, 1995, is being duly executed and filed by the undersigned, as
trustee, to form a business trust under the Delaware Business Trust Act (12 Del.
Code Section 3801 et seq.).
1. Name. The name of the business trust being formed hereby is Xxxxx
----
Capital.
2. Delaware Trustee. The name and business address of the trustee of
----------------
the Trust who is a resident of the State of Delaware is Xxxxxxx X. Xxxxxxxxx,
c/o FCC National Bank, 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000.
3. Effective Date. This Certificate of Trust shall be effective as
--------------
of its filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
----------------------------------------
Xxxxxxx X. Xxxxxxxxx, as Delaware Trustee
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:______________________________________
Name:
Title:
EXHIBIT B
_______ __, 1995
The Depository Trust Company,
00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 10041-0099
Attention: General Counsel's Office
Re: Xxxxx Capital ____% Cumulative
Quarterly Income Preferred Securities,
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to the
issuance and deposit with The Depository Trust Company ("DTC") of the Xxxxx
Capital ____% Cumulative Quarterly Income Preferred Securities (the "Preferred
Securities"), of Xxxxx Capital, a Delaware business trust (the "Issuer"), formed
pursuant to a Trust Agreement between The Xxxxx Company ("Xxxxx") and The First
National Bank of Chicago ("First Chicago") and Xxxxxxx X. Xxxxxxxxx, as
Trustees. The payment of distributions on the Preferred Securities and payments
due upon liquidation of the Issuer or redemption of the Preferred Securities are
to be guaranteed by Xxxxx to the extent set forth in a Guarantee Agreement dated
_______ __, 1995 by Xxxxx and First Chicago, as guarantee trustee, with respect
to the Preferred Securities. Xxxxx and the Issuer propose to sell the Preferred
Securities to certain underwriters (the "Underwriters") pursuant to an
Underwriting Agreement dated _______ __, 1995 by and among the Underwriters, the
Issuer and Xxxxx, and the Underwriters wish to take delivery of the Preferred
Securities through DTC.
To induce DTC to accept the Preferred Securities as eligible for deposit
at DTC, and to act in accordance with DTC's Rules with respect to the Preferred
Securities, the Issuer and First Chicago make the following representations to
DTC:
1. Prior to the closing of the sale of the Preferred Securities to the
Underwriters, which is expected to occur on or about _______ __, 1995, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's nominee,
Cede & Co., representing an aggregate of up to 4,600,000 Preferred Securities
and bearing the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Issuer or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of Xxxxx Capital provides
for the voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or First
Chicago shall send DTC a notice of such event at least five business days prior
to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of rights
with respect to, the Preferred Securities outstanding, the Issuer or First
Chicago shall send DTC a notice specifying: (a) the amount of and conditions, if
any, applicable to the payment of any such distribution or any such offering or
issuance of rights; (b) any applicable expiration or deadline date, or any date
by which any action on the part of the holders of Preferred Securities is
required; and (c) the date any required notice is to be mailed by or on behalf
of the Issuer to holders of Preferred Securities or published by or on behalf of
the Issuer (whether by mail or publication, the "Publication Date"). Such notice
shall be sent to DTC by a secure means (e.g., legible telecopy, registered or
----
certified mail, overnight delivery) in a timely manner designed to assure
that such notice is in DTC's possession no later than the close of business on
the business day before the Publication Date. The Issuer or First Chicago will
forward such notice either in a separate secure transmission for each CUSIP
number or in a secure transmission of multiple CUSIP numbers (if applicable)
that includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be not less than 30 calendar days nor more than 60
calendar days prior to the payment of any such distribution or any such offering
or issuance of rights with respect to the Preferred Securities. After
establishing the amount of payment to be made on the Preferred Securities, the
Issuer or First Chicago will notify DTC's
B-2
Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-
1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
The Issuer or First Chicago shall confirm DTC's receipt of such telecopy by
telephoning the Dividend Department at (000) 000-0000.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or First Chicago to DTC not less
than 30 calendar days prior to such event by a secure means in the manner set
forth in paragraph 4. Such redemption notice shall be sent to DTC's Call
Notification Department at (000) 000-0000 or (000) 000-0000, and receipt of such
notice shall be confirmed by telephoning (000) 000-0000. Notice by mail or by
any other means shall be sent to:
Call Notification Department
The Depository Trust Company
Xxxxxx Xxxx, Xxx Xxxx 00000-0000
6. In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or First Chicago to DTC by a secure means and
in a timely manner as described in paragraph 4. Notices to DTC pursuant to this
paragraph and notices of other corporate actions (including mandatory tenders,
exchanges and capital changes), shall be sent, unless notification to another
department is expressly provided for herein, by telecopy to DTC's Reorganization
Department at (000) 000-0000 or (000) 000-0000 and receipt of such notice shall
be confirmed by telephoning (000) 000-0000, or by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
7. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
B-3
of the Preferred Securities, which, as of the date of this letter, is "Xxxxx
Capital ____% Cumulative Quarterly Income Preferred Securities".
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be governed by
DTC's current Principal and Income Payments Rider, a copy of which is attached
hereto as Annex I. For purposes of this letter, the term "Agent" used in Annex I
shall be deemed to refer to First Chicago.
9. DTC may direct the Issuer and First Chicago to use any other telecopy
number or address of DTC as the number or address to which notices or payments
may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the
- -
Issuer's or First Chicago's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by the Global
Certificate, DTC, in its discretion: (a) may request the Issuer or First
Chicago to issue and countersign a new Global Certificate; or (b) may make an
appropriate notation on the Global Certificate indicating the date and amount of
such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving reasonable prior
written notice to the Issuer and First Chicago (at which time DTC will confirm
with the Issuer or First Chicago the aggregate number of Preferred Securities
deposited with it) and discharging its responsibilities with respect thereto
under applicable law. Under such circumstances, the Issuer may determine to make
alternative arrangements for book-entry settlement for the Preferred Securities,
make available one or more separate global certificates evidencing Preferred
Securities to any Participant having Preferred Securities credited to its DTC
account, or issue definitive Preferred Securities to the beneficial holders
thereof, and in any such case, DTC agrees to cooperate fully with the Issuer and
First Chicago and to return the Global Certificate, duly endorsed for transfer
as directed by the Issuer or First Chicago, together with any other documents of
transfer reasonably requested by the Issuer or First Chicago.
12. In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or First Chicago shall notify DTC of the availability of
certificates. In such event, the Issuer or First Chicago shall issue, transfer
and exchange certificates in appropriate amounts, as required by DTC and others,
and DTC agrees to cooperate fully with the Issuer and First Chicago and to
return the Global Certificate, duly endorsed for transfer as directed by the
B-4
Issuer or First Chicago, together with any other documents of transfer
reasonably requested by the Issuer or First Chicago.
13. This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. This
letter shall be governed by and construed in accordance with the laws of the
State of New York.
Nothing herein shall be deemed to require First Chicago to advance funds on
behalf of the Issuer.
Very truly yours,
XXXXX CAPITAL
(As Issuer)
By: The Xxxxx Company
By:_______________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By: ______________________________________
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:____________________________
Authorized Officer
B-5
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-
Certificate Evidencing Common Securities
of
XXXXX CAPITAL
Common Securities
(liquidation amount U.S. $25 per Common Security)
Xxxxx Capital, a statutory business trust formed under the laws of the
State of Delaware (the "Trust"), hereby certifies that The Xxxxx Company (the
"Holder") is the registered owner of__________________________________________
common securities of the Trust representing beneficial interests in the assets
of the Trust and designated the Common Securities (liquidation amount U.S. $25
per Common Security) (the "Common Securities"). In accordance with, and except
as provided by, Section 5.10 of the Trust Agreement (as defined below) the
Common Securities are not transferable and any attempted transfer hereof shall
be void. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are issued and shall in
all respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of ______ __, 1995, as the same may be
amended from time to time (the "Trust Agreement"), including the designation of
the terms of the Common Securities as set forth therein. The Trust will furnish
a copy of the Trust Agreement to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder hereof is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has executed
this certificate this ___ day of _______, 1995.
XXXXX CAPITAL
By:___________________________
Administrative Trustee
Registered and Countersigned by
The First National Bank of Chicago
By:_______________________________
C-2
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of _______ __, 1995, between The Xxxxx Company, a
Maryland corporation ("Xxxxx"), and Xxxxx Capital, a Delaware business trust
(the "Trust") .
WHEREAS, the Trust intends to issue and sell its Common Securities (the
"Common Securities") to and receive Debentures from Xxxxx and to issue and sell
Xxxxx Capital ____% Cumulative Quarterly Income Preferred Securities (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of _______ __, 1995 as the same may be amended from time to time
(the "Trust Agreement");
WHEREAS, Xxxxx is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Xxxxx hereby agrees shall benefit Xxxxx and
which purchase Xxxxx acknowledges will be made in reliance upon the execution
and delivery of this Agreement, Xxxxx and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by Xxxxx. Subject to the terms and conditions hereof,
------------------
Xxxxx hereby irrevocably and unconditionally guarantees to each person or entity
to whom the Trust is now or hereafter becomes indebted or liable (the
"Creditors") the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to such Creditors. As used herein, "Obligations" means any
indebtedness, expenses or liabilities of the Trust, other than obligations of
----- ----
the Trust to pay to holders of any Preferred Securities or Common Securities (as
defined in the Trust Agreement) in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or Common Securities, as the
case may be. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Creditors, whether or not such Creditors have received
notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be of no
-----------------
further force and effect upon the date on which there are no Creditors
remaining; provided, however, that this Agreement shall continue to be effective
-------- -------
or shall be reinstated, as the case may be, if at any time any Creditor must
restore payment of any
sums paid under any Obligation for any reason whatsoever. This Agreement is
continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Xxxxx hereby waives notice of acceptance of
----------------
this Agreement and of any Obligation to which it applies or may apply, and Xxxxx
hereby waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements and duties
-------------
of Xxxxx under this Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any portion of
the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Creditors to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Creditors with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt, or other similar proceedings affecting, the Trust or
any of the assets of the Trust.
There shall be no obligation of the Creditors to give notice to, or obtain the
consent of, Xxxxx with respect to the happening of any of the foregoing.
Section 1.05. Enforcement. A Creditor may enforce this Agreement directly
-----------
against Xxxxx and Xxxxx waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against Xxxxx.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained in this
--------------
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Xxxxx and shall inure to the benefit of the Creditors.
Section 2.02. Amendment. So long as there remains any Creditor or any
---------
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Creditor or to the holders of
the Preferred Securities.
D-2
Section 2.03. Notices. Any notice, request or other communication required or
-------
permitted to be given hereunder shall be given in writing by delivering the same
against receipt therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so given, shall be
deemed given when mailed or upon receipt of an answer-back, if sent by telex),
to wit:
Xxxxx Capital
c/o The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000.
Attention: Corporate Trust Services Division
(with a copy to:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000.
Attention: Corporate Trust Services Division)
The Xxxxx Company
00000 Xxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Treasurer
(with a copy to the attention of the
Secretary and to the Administrative Trustees
Facsimile No.: (000) 000-0000)
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
D-3
THIS AGREEMENT is executed as of the day and year first above written.
THE XXXXX COMPANY
By:_______________________________
Name:
Title:
XXXXX CAPITAL
By:_______________________________
Name:
Title:
D-4
EXHIBIT E
This Preferred Security is a Global Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to Xxxxx Capital or its agent for registration of transfer, exchange or
payment, and any 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 Preferred Securities
P-
CUSIP NO.
__________
Certificate Evidencing Preferred Securities
of
XXXXX CAPITAL
____% Cumulative Quarterly Income Preferred Securities,
(liquidation amount U.S. $25 per Preferred Security)
Xxxxx Capital, a statutory business trust formed under the laws of the
State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the "Holder")
is the registered owner of ______________________________________________
preferred securities of the Trust representing a beneficial interest in the
assets of the Trust and designated the Xxxxx Capital ____% Cumulative Quarterly
Income Preferred Securities (liquidation amount U.S. $25 per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by
a duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer as provided in Section 5.04 of the Trust Agreement
(as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are set
forth in, and this certificate and the Preferred Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust dated as of _______ __,
1995, as the same may be amended from time to time (the "Trust Agreement"),
including the designation of the terms of Preferred Securities as set forth
therein. The holder of this certificate is entitled to the benefits of the
Guarantee Agreement entered into by The Xxxxx Company, a Maryland corporation,
and The First National Bank of Chicago, as guarantee trustee, dated as of
_______ __, 1995 (the "Guarantee") to the extent provided therein. The Trust
will furnish a copy of the Trust Agreement and the Guarantee to the Holder of
this certificate without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of _______, 1995.
Xxxxx Capital
By:____________________________
Administrative Trustee
Registered and Countersigned by
The First National Bank of Chicago
By:_______________________________
E-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security 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 Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
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