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Exhibit 10.49
AMENDED AND RESTATED
TRUST AGREEMENT
among
GENAMERICA CORPORATION, as Depositor
and
WILMINGTON TRUST COMPANY, as Property Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇ ▇. ▇▇▇▇▇▇,
and
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Administrative Trustees
Dated as of June 6, 1997
GENAMERICA CAPITAL I
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.01. DEFINITIONS ................................................ 1
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01. NAME ........................................................ 10
Section 2.02. OFFICE OF THE PROPERTY TRUSTEE; PRINCIPAL PLACE OF BUSINESS.. 10
Section 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES................................................... 10
Section 2.04. ISSUANCE OF THE CAPITAL SECURITIES........................... 10
Section 2.05. PURCHASE OF DEBENTURES; ISSUANCE OF THE COMMON SECURITIES.... 10
Section 2.06. DECLARATION OF TRUST......................................... 11
Section 2.07. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS............. 11
Section 2.08. ASSETS OF TRUST.............................................. 14
Section 2.09. TITLE TO TRUST PROPERTY...................................... 14
ARTICLE III
PAYMENT ACCOUNT
Section 3.01. PAYMENT ACCOUNT.............................................. 15
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.01. DISTRIBUTIONS................................................ 15
Section 4.02. REDEMPTION................................................... 16
Section 4.03. SUBORDINATION OF COMMON SECURITIES........................... 18
Section 4.04. PAYMENT PROCEDURES........................................... 19
Section 4.05. TAX RETURNS AND REPORTS...................................... 19
Section 4.06. PAYMENT OF TAXES, DUTIES, ETC................................ 20
Section 4.07. PAYMENTS UNDER INDENTURE..................................... 20
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01. INITIAL OWNERSHIP............................................ 20
Section 5.02. THE TRUST SECURITIES CERTIFICATES............................ 20
Section 5.03. DELIVERY OF TRUST SECURITIES CERTIFICATES.................... 21
Section 5.04. GLOBAL CAPITAL SECURITY...................................... 21
Section 5.05. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY; CERTAIN
TRANSFERS AND EXCHANGES; CAPITAL SECURITIES CERTIFICATES;
SECURITIES ACT LEGENDS..................................... 23
Section 5.06. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES............................................... 27
Section 5.07. PERSONS DEEMED SECURITYHOLDERS............................... 27
Section 5.08. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES....... 27
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Section 5.09. MAINTENANCE OF OFFICE OR AGENCY.............................. 28
Section 5.10. APPOINTMENT OF PAYING AGENT.................................. 28
Section 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.................. 28
Section 5.12. GLOBAL CAPITAL SECURITIES CERTIFICATES; COMMON SECURITIES
CERTIFICATE................................................ 29
Section 5.13. NOTICES TO CLEARING AGENCY................................... 30
Section 5.14. DEFINITIVE CAPITAL SECURITIES CERTIFICATES................... 30
Section 5.15. RIGHTS OF SECURITYHOLDERS.................................... 31
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01. LIMITATIONS ON VOTING RIGHTS................................. 33
Section 6.02. NOTICE OF MEETINGS........................................... 34
Section 6.03. MEETINGS OF CAPITAL SECURITYHOLDERS.......................... 34
Section 6.04. VOTING RIGHTS................................................ 35
Section 6.05. PROXIES, ETC................................................. 35
Section 6.06. SECURITYHOLDER ACTION BY WRITTEN CONSENT..................... 35
Section 6.07. RECORD DATE FOR VOTING AND OTHER PURPOSES.................... 35
Section 6.08. ACTS OF SECURITYHOLDERS...................................... 36
Section 6.09. INSPECTION OF RECORDS........................................ 37
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.01. REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE PROPERTY
TRUSTEE.................................................... 37
Section 7.02. REPRESENTATIONS AND WARRANTIES OF PARENT..................... 38
ARTICLE VIII
THE TRUSTEES
Section 8.01. CERTAIN DUTIES AND RESPONSIBILITIES.......................... 39
Section 8.02. CERTAIN NOTICES.............................................. 40
Section 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE........................... 40
Section 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES....... 43
Section 8.05. MAY HOLD SECURITIES.......................................... 43
Section 8.06. COMPENSATION; INDEMNITY; FEES................................ 43
Section 8.07. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES................................................... 43
Section 8.03. CONFLICTING INTERESTS........................................ 44
Section 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE............................. 44
Section 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR............ 45
Section 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR....................... 47
Section 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF A TRUSTEE...................................... 48
Section 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST...................................................... 48
Section 8.14. REPORTS BY PROPERTY TRUSTEE.................................. 49
Section 8.15. REPORTS TO THE PROPERTY TRUSTEE.............................. 49
Section 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT............. 50
Section 8.17. NUMBER OF TRUSTEES........................................... 50
Section 8.18. DELEGATION OF POWER.......................................... 50
Section 8.18. VOTING....................................................... 5I
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01. TERMINATION UPON EXPIRATION DATE.............................. 51
Section 9.02. EARLY TERMINATION............................................. 51
Section 9.03. TERMINATION................................................... 51
Section 9.04. LIQUIDATION................................................... 52
Section 9.05. MERGER, CONSOLIDATION, AMALGAMATION OR REPLACEMENT OF THE
TRUST....................................................... 53
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ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. EXPENSE AGREEMENT........................................... 54
Section 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS..................... 54
Section 10.03. AMENDMENT................................................... 54
Section 10.04. SEPARABILITY................................................ 56
Section 10.05. GOVERNING LAW............................................... 56
Section 10.06. PAYMENTS DUE ON NON-BUSINESS DAY............................ 56
Section 10.07. SUCCESSORS.................................................. 56
Section 10.08. HEADINGS.................................................... 56
Section 10.09. REPORTS, NOTICES AND DEMANDS................................ 56
Section 10.10. AGREEMENT NOT TO PETITION................................... 57
Section 10.12. RIGHTS UNDER INDENTURE...................................... 58
Section 10.13. EFFECTIVENESS............................................... 58
Section 10.14. INTENTION OF THE PARTIES.................................... 58
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Capital Securities Certificate
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GENAMERICA CAPITAL I
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
---------------- ---------------
Section 310(a)(1) ........................................... 8.07
(a)(2) ........................................... 8.07
(a)(3) ........................................... 8.09
(a)(4) ........................................... Not Applicable
(b) ........................................... 8.08
Section 311(a) ........................................... 8.13
(b) ........................................... 8.13
Section 312(a) ........................................... 5.07
(b) ........................................... 5.07
(c) ........................................... 5.07
Section 313(a) ........................................... 8.14(a)
(a)(4) ........................................... 8.14(b)
(b) ........................................... 8.14(b)
(c) ........................................... 8.14(a)
(d) ........................................... 8.14(a),8.14(b)
Section 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
Section 315(a) ........................................... 8.01
(b) ........................................... 8.02, 8.14(b)
(c) ........................................... 8.01(a)
(d) ........................................... 8.01, 8.03
(e) ........................................... Not Applicable
Section 316(a) ........................................... Not Applicable
(a)(1)(A).......................................... Not Applicable
(a)(1)(B).......................................... Not Applicable
(a)(2) ........................................... Not Applicable
(b) ........................................... Not Applicable
(c) ........................................... Not Applicable
Section 317(a)(1) ........................................... Not Applicable
(a)(2) ........................................... Not Applicable
(b) ........................................... 5.09
Section 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 June 6, 1997, among (i)
GenAmerica Corporation, a Missouri corporation (the "Depositor" or "Parent"),
(ii) Wilmington Trust Company, a banking corporation duly organized and existing
under the laws of Delaware, as trustee (the "Property Trustee" and, in its
separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual, ▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual,
and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual, each of whose address is c/o
GenAmerica Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (each, an
"Administrative Trustee" and collectively, the "Administrative Trustees") (the
Property Trustee and the Administrative Trustees being referred to collectively
as the "Trustees") and (iv) the several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor, the Property Trustee and the Administrative
Trustees 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 May 30, 1997 (the "Original Trust Agreement"), and by the
execution and filing by the Property Trustee with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on June 2, 1997, the form
of which is attached as Exhibit A; and
WHEREAS, the Depositor and the Property Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the acquisition by the Trust (as defined
herein) from the Depositor of all of the right, title and interest in the
Debentures (as defined herein), (ii) the issuance of the Common Securities (as
defined herein) by the Trust to the Depositor and (iii) the issuance and sale of
the Capital Securities (as defined herein) by the Trust pursuant to the
Placement Agreement (as defined herein).
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other 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,
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;
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(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"ACT" has the meaning specified in Section 6.08.
"ADDITIONAL AMOUNT" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"ADDITIONAL SUMS" has the meaning specified in Section 1005 of the
Indenture.
"ADMINISTRATIVE TRUSTEE" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement, solely in his
capacity as Administrative Trustee of the Trust formed and continued hereunder
and not in his individual capacity, or such Administrative Trustee's successor
in interest in such capacity, or any successor Trustee appointed as herein
provided.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Capital Security, the rules and procedures of the
Clearing Agency for such Global Capital Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
"BANK" has the meaning specified in the preamble to this Trust Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee sequestrator or other similar official
of such Person or of any substantial part of its property, or ordering the
winding up
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or liquidation of its affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or of the consent by it to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar official of
such Person or of any substantial part of its property or the admission by it in
writing of its inability to pay its debts generally as they become due and its
willingness to be adjudicated as a bankrupt, or the making by it of an
assignment for the benefit of creditors, or the taking of action by such Person
in furtherance of any such action.
"BANKRUPTCY LAWS" has the meaning specified in Section 10.10.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors or a duly authorized committee thereof or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated and to be in full force and effect on the date of
such certification, and delivered to the Property Trustee.
"BUSINESS DAY" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in The City of New York are authorized or
obligated by law or executive order to remain closed, or (c) a day on which the
Property Trustee's Corporate Trust Office or the Debenture Trustee's Corporate
Trust Office is closed for business.
"CAPITAL SECURITIES CERTIFICATE" means a certificate evidencing ownership
of Capital Securities, substantially in the form attached as Exhibit C.
"CAPITAL SECURITY" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $1,000 and having rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"CERTIFICATE DEPOSITORY AGREEMENT" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Capital Securities Certificates.
"CLEARING AGENCY" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
Depository Trust Company will be the initial Clearing Agency.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
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"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"COMMON SECURITIES CERTIFICATE" means a certificate evidencing ownership
of Common Securities, substantially in the form attached as Exhibit B.
"COMMON SECURITY" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"CORPORATE TRUST OFFICE" means the principal office of either the
Property Trustee or the Trustee named in the Indenture. So long as Wilmington
Trust Company serves in both capacities, such principal office is located in
Wilmington, Delaware.
"DEBENTURE EVENT OF DEFAULT" means an "Event of Default" as defined in
the Indenture.
"DEBENTURE REDEMPTION DATE" means "Redemption Date" as defined in the
Indenture.
"DEBENTURE TRUSTEE" means Wilmington Trust Company, a banking corporation
duly organized and existing under the laws of the State of Delaware, or any
successor thereto.
"DEBENTURES" means the $128,866,000 aggregate principal amount of the
Parent's 8.525% Junior Subordinated Debentures, issued pursuant to the
Indenture.
"DEFINITIVE CAPITAL SECURITIES CERTIFICATES" means either or both (as the
context requires) of (i) Capital Securities Certificates issued as Global
Capital Securities Certificates as provided in Section 5.02(b) and (ii) Capital
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.02(c).
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. Section 3801, ET SEQ., as it may be amended from time
to time.
"DEPOSITOR" has the meaning specified in the preamble to this Trust
Agreement and includes GenAmerica Corporation in its capacity as Holder of the
Common Securities.
"DIRECT ACTION" has the meaning specified in Section 5.12(c).
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"DISTRIBUTION DATE" has the meaning specified in Section 4.01(a).
"DISTRIBUTIONS" means amounts payable in respect of the Trust Securities
as provided in Section 4.01.
"EVENT OF DEFAULT" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust or the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(c) default by the Trust or the Property Trustee in the payment
of any Redemption Price of any Trust Security when it becomes due and
payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance of which or the breach of
which is dealt with in clause (b) or (c), above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Trustee or Trustees by the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Capital Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"EXPENSE AGREEMENT" means the Agreement as to Expenses and Liabilities
between the Parent and the Trust, substantially in the form attached as Exhibit
A to the Indenture, as amended from time to time.
"GLOBAL CAPITAL SECURITIES CERTIFICATE" means a Capital Securities
Certificate, evidencing ownership of Global Capital Securities.
"GLOBAL CAPITAL SECURITY" means a Capital Security, the ownership and
transfers of which shall be made through book-entries by a Clearing Agency as
described in Section 5.04.
"GUARANTEE" means the Guarantee Agreement executed and delivered by the
Parent and Wilmington Trust Company, a banking corporation, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Capital Securities, as amended from time to
time.
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"INDENTURE" means the Junior Subordinated Indenture, dated as of June 6,
1997, between the Parent and the Debenture Trustee, as trustee, as amended or
supplemented from time to time.
"LIEN" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"LIKE AMOUNT" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture and
the proceeds of which will be used to pay the Redemption Price of such Trust
Securities, (b) with respect to a distribution of Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed, and (c)
with respect to any distribution of Additional Amounts to Holders of Trust
Securities, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities in respect of which such distribution is made.
"LIQUIDATION AMOUNT" means the stated amount of $1,000 per Trust
Security.
"LIQUIDATION DATE" means the date of dissolution, winding-up or
termination and liquidation of the Trust pursuant to Section 9.04(a).
"LIQUIDATION DISTRIBUTION" has the meaning specified in Section 9.04(d).
"MAJORITY IN LIQUIDATION AMOUNT OF THE CAPITAL SECURITIES" or "MAJORITY
IN LIQUIDATION AMOUNT OF THE COMMON SECURITIES" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the Chief Investment Officer, the Chief
Executive Officer, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Depositor,
and delivered to the appropriate Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 8.16 shall be the principal
executive, financial investment 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;
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(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and may be an
employee of any thereof, and who shall be acceptable to the Property Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the recitals to
this Trust Agreement.
"OUTSTANDING", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed,
authenticated and delivered under this Trust Agreement, EXCEPT:
(a) Trust Securities theretofore canceled by the Administrative
Trustees or delivered to the Administrative Trustees for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent; PROVIDED that, if such Trust Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu of
which other Capital Securities have been executed, authenticated and delivered
pursuant to this Trust Agreement;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
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 Capital 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 Capital Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Capital 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 Capital 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 Global Capital
Securities Certificate as reflected in the records of the Clearing Agency or, if
a Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining
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an account with such Clearing Agency (directly or indirectly, in accordance with
the rules of such Clearing Agency).
"PARENT" has the meaning specified in the preamble to this Trust
Agreement.
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its corporate 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 venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACEMENT AGREEMENT" means the Placement Agreement, dated June
5, 1997 among GenAmerica Corporation, General American Life Insurance
Company (for the specific purpose set forth therein), GenAmerica
Capital I, ▇. ▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Conning &
Company.
"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 shall be a Redemption
Date for a Like Amount of Trust Securities.
"REDEMPTION PRICE" means, with respect to any date fixed for redemption
of any Trust Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions to such date, plus the amount of the
premium, if any, paid by the Depositor upon the concurrent redemption of a Like
Amount of Debentures allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities.
"RELEVANT TRUSTEE" shall have the meaning specified in Section 8.10.
"RESTRICTED CAPITAL SECURITIES" means all Capital Securities required
pursuant to Section 5.05(c) to bear a Restricted Capital Securities Legend. Such
term includes the Global Capital Securities Certificate.
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"RESTRICTED CAPITAL SECURITIES CERTIFICATE" means a certificate
evidencing ownership of Restricted Capital Securities.
"RESTRICTED CAPITAL SECURITIES LEGEND" means a legend substantially in
the form of the legend required in Section 5.05(c).
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 5.05(a).
"SECURITYHOLDER" or "HOLDER" means a Person in whose name a Trust
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; provided, however, that in determining whether the Holders
of the requisite amount of Capital Securities have voted on any matter provided
for in this Trust Agreement, then for the purpose of any such determination, so
long as Definitive Capital Securities Certificates have not been issued, the
term Securityholders or Holders as used herein shall refer to Owners.
"TRUST" means the Delaware business trust created and continued hereby
and identified on the cover page to this Trust Agreement.
"TRUST AGREEMENT" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including 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.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUST PROPERTY" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account, (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement
and (d) the rights of the Property Trustee under the Guarantee.
"TRUST SECURITY" means any one of the Common Securities or the Capital
Securities.
"TRUST SECURITIES CERTIFICATE" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"TRUSTEES" has the meaning specified in the preamble to this Trust
Agreement.
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ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01. NAME. The Trust created and continued hereby shall be known
as "GenAmerica Capital I," 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 ▇▇▇ and be sued.
Section 2.02. OFFICE OF THE PROPERTY TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Property Trustee in the State of Delaware
is ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Administration, or such other address
in the State of Delaware as the Property Trustee may designate by
written notice to the Securityholders and the Depositor. The principal
place of business of the Trust is c/o GenAmerica Corporation, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04. ISSUANCE OF THE CAPITAL SECURITIES. On June 5, 1997, the
Depositor, both on its own behalf and on behalf of the Trust and pursuant to the
Original Trust Agreement, executed and delivered the Placement Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.02 and deliver in accordance with the Placement Agreement, one or more
Capital Securities Certificates, registered in the name of the Persons entitled
thereto, in an aggregate amount of 125,000 Capital Securities having an
aggregate Liquidation Amount of $125,000,000 against receipt of the aggregate
purchase price of such Capital Securities of $125,000,000, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee. Upon
order by an Administrative Trustee, such Capital Securities Certificates shall
be authenticated by the Property Trustee.
Section 2.05. PURCHASE OF DEBENTURES; ISSUANCE OF THE COMMON SECURITIES.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.02 and deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 3,866 Common
Securities having an aggregate Liquidation Amount of $3,866,000 against payment
by the Depositor of such amount. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Debentures, registered in the name of the
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Property Trustee on behalf of the Trust and having an aggregate principal amount
equal to $128,866,000, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $128,866,000.
Section 2.06. DECLARATION OF TRUST. The exclusive purposes and functions
of the Trust are (a) to issue and sell Trust Securities and use the proceeds
from such sale to acquire the Debentures, and (b) to engage in those activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties set
forth herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon and
subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust.
Section 2.07. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Property Trustee and the Administrative Trustees shall conduct
the affairs of the Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this Section, and in
accordance with the following provisions (i) and (ii), the Property Trustee and
the Administrative Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, the Administrative Trustees shall have
the power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the 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;
(C) assisting in any registration of the Capital Securities
under state securities or blue sky laws;
(D) assisting in the approval for trading of the Capital
Securities upon the PORTAL System and the preparation and filing
of any periodic and other reports and other documents pursuant to
the foregoing;
(E) the sending of notices (other than notices of default)
and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust
Agreement;
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(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with
this Trust Agreement (which consent shall not be unreasonably
withheld);
(G) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;
(H) unless otherwise determined by the Property Trustee or
the Holders of at least a majority of Liquidation Amount of the
Capital Securities, 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
(I) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement 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).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to
the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Securityholders in respect of the Trust
Securities;
(F) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(F) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(G) 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;
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(H) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(I) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;
(J) after an Event of Default (other than under paragraph
(b), (c), (d) or (e) of the definition of such term if such Event
of Default is by or with respect to the Property Trustee, in which
case the Administrative Trustees shall have such power, duty and
authority) 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); and
(K) any of the duties, liabilities, powers or the authority
of the Administrative Trustees set forth in Section 2.7(a)(i)(E)
and (I) herein; and in the event of a conflict between the action
of the Administrative Trustees and the action of the Property
Trustee, the action of the Property Trustee shall prevail.
(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 and the Trust shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take any action that
would result in more than an insubstantial risk that the Trust would fail or
cease to qualify as a "grantor trust" for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money or issue any other debt
or (v) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property. The Administrative Trustees shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders.
(c) In connection with the issue and sale of the Capital 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):
(i) to prepare preliminary and final Offering Memoranda with
respect to the transactions contemplated by the Placement Agreement;
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(ii) to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Capital 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 or advisable in order to comply
with the applicable laws of any such States and in connection with the
sale of the Capital Securities;
(iii) to negotiate the terms of, and execute and deliver, the
Placement Agreement providing for the sale of the Capital Securities; and
(iv) to take 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 (i) be deemed to be an "investment
company" required to be registered under the Investment Company Act of 1940, as
amended, or (ii) fail or cease to qualify as a grantor trust for United States
Federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Depositor for United States Federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes as long as such action does not adversely affect in any material
respect the interests of the Holders of the Capital Securities. In no event
shall the Trustees be liable to the Trust or the Holders for any failure to
comply with this section that results from a change in law or regulation or in
the interpretation thereof.
(e) All prior actions taken by the Administrative Trustees on behalf of
Parent in furtherance of Parent's powers, duties and obligations under the
Original Trust Agreement are hereby ratified and affirmed as actions of the
Trust.
Section 2.08. ASSETS OF TRUST. The assets of the Trust shall consist of
the Trust Property.
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.
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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 of 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) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including Additional Amounts) will be made on
the Trust Securities at the rate and on the dates that payments of interest
(including Additional Interest, as defined in the Indenture) are made on the
Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from June 6,
1997, and, except in the event (and to the extent) that the Parent
exercises its right to defer interest payments for the Debentures
pursuant to Section 301 of the Indenture (an "Extension Period"), shall
be payable semi-annually in arrears on June 30 and December 31 of each
year, commencing on December 31, 1997. 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 additional distribution 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 the date on which such
payment was originally payable (each date on which distributions are
payable in accordance with this Section 4.01(a), a "Distribution Date").
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(ii) Subject to Section 4.03 hereof, all Distributions will be
made pro rata on each of the Trust Securities. Distributions payable on
the Capital Securities shall be fixed at a rate of 8.525% per annum of
the Liquidation Amount of the Capital Securities. Distributions payable
on the Common Securities shall be fixed at a rate of 8.525% per annum of
the Liquidation Amount of the Common Securities. The amount of
Distributions payable for any full semi-annual 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. During any Extension
Period with respect to the Debentures, Distributions on Trust Securities
shall be deferred for a period equal to the Extension Period. The amount
of Distributions payable for any period shall include the Additional
Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be deemed payable on
each Distribution Date only to the extent that the Trust has funds
available in the Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be the fifteenth day of the month in which the relevant
Distribution Date occurs.
Section 4.02. REDEMPTION.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number or numbers of the Capital Securities
affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
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(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Capital Securities, then, by 12:00 noon, New York time, on the Redemption
Date, subject to Section 4.02(c), the Property Trustee will, so long as the
Capital Securities are in book-entry-only form, irrevocably deposit with the
Clearing Agency for the Capital Securities funds sufficient to pay the
applicable Redemption Price, will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
If the Capital Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 4.02(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Capital 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 and any
Distribution payable in respect of the Trust Securities on or prior to the
Redemption Date, but without interest on such Redemption Price, and such Trust
Securities will cease to be outstanding. In the event that any date fixed for
redemption of Trust Securities is not a Business Day, then payment of the
Redemption Price payable on such date will 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 falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date. In the event
that payment of the Redemption Price in respect of any Trust Securities called
for redemption is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accumulate, as set forth in Section 4.01, from the
Redemption Date originally established by the Trust for such Trust Securities to
the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities and
distribution of Debentures to holders of Capital Securities shall be made to the
record holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be the date fifteen (15)
days prior to the relevant Redemption Date or Liquidation Date, as applicable.
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(f) Subject to Section 4.03(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed, and the amount of the
premium, if any, paid by the Parent upon the redemption of a Like Amount of
Debentures pursuant to the Indenture, shall be allocated proportionally between
the Common Securities and the Capital Securities according to their aggregate
Liquidation Amounts. The particular Capital Securities to be redeemed shall be
selected on a pro rata basis (based upon Liquidation Amounts) not more than 60
days prior to the Redemption Date by the Property Trustee from the Outstanding
Capital Securities not previously called for redemption, by such method
(including, without limitation, by lot) as the Property Trustee shall deem fair
and appropriate; provided that, after giving effect to such redemption, no
Holder shall hold Capital Securities with an aggregate Liquidation Amount of
less than $100,000; and provided further that, so long as the Capital Securities
are in book-entry-only form, such selection shall be made in accordance with the
customary procedures for the Clearing Agency for the Capital Securities. The
Property Trustee shall promptly notify the Security Registrar in writing of the
Capital Securities selected for redemption and, in the case of any Capital
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 Capital Securities shall
relate, in the case of any Capital Securities redeemed or to be redeemed only in
part, to the portion of the aggregate Liquidation Amount of Capital Securities
which has been or is to be redeemed.
Section 4.03. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of and the Liquidation Distribution in
respect of the Trust Securities, as applicable, shall be made, subject to
Section 4.02(f), pro rata among the Capital Securities and the Common Securities
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date, Redemption Date or Liquidation Date any Event of
Default resulting from a 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 or Liquidation Distribution in respect
of, any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions (including
Additional Amounts, if applicable) on all Outstanding Capital 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 Capital Securities, then called for redemption, or in the case of
payment of the Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Capital Securities, shall have been made or
provided for, and all funds available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Capital
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Trust Agreement
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until the effect of all such Events of Default with respect to the Capital
Securities have been cured, waived or otherwise eliminated. Until all such
Events of Default under this Trust Agreement with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not on behalf of the Holder of the Common Securities, and only the Holders of
the Capital Securities will have the right to direct the Property Trustee to act
on their behalf.
Section 4.04. PAYMENT PROCEDURES. Payments of Distributions (including
Additional Amounts if applicable) in respect of the Capital Securities shall be
made at (i) the Corporate Trust office of the Property Trustee, (ii) the
principal office of any Paying Agent, or (iii) the principal office of the
Securities Registrar; provided that payment of any Distribution may be made, at
the option of the Administrative Trustees, by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register
or by wire transfer in immediately available funds at such place and to such
account as may be designated by the Person entitled thereto as specified in the
Securities Register; if the Capital Securities are held by a Clearing Agency,
such payments shall be made either by check or by wire transfer, at the option
of the Paying Agent, to the Clearing Agency in immediately available funds,
which shall credit the relevant Persons' accounts at such Clearing Agency on the
applicable Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of the Common Securities.
Section 4.05. TAX RETURNS AND REPORTS.
(a) The Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense, and filed by January 31 following each calendar year
all Federal, state and local tax and information returns and reports required to
be filed by or in respect of the Trust. In this regard, by January 31 following
each calendar year 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 Form 1099
(or any successor 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.
(b) In the event that any withholding tax is imposed on the Trust's
payment to a Securityholder, such tax shall reduce the amount otherwise
distributable to the Securityholder in accordance with this Section. Any
Securityholder who is a nonresident alien individual or which is organized under
the laws of a jurisdiction outside the United States shall, on or prior to the
date such Securityholder becomes a Securityholder, (a) so notify the Trust and
the Trustees, and (b) either (i) provide the Trust and the Trustees with
Internal Revenue Service form 1001, 4224, 8709 or W-8, as appropriate, or (ii)
notify the Trust and the Trustees that it is not entitled to an exemption from
United States withholding tax or a reduction in the rate thereof on payments of
interest. Any such Securityholder agrees by its acceptance of a Capital
Security, on an ongoing basis, to provide like certification for each
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taxable year for which it is necessary to provide such information and to notify
the Trust and the Trustees should subsequent circumstances arise affecting the
information provided the Trustees in clauses (a) and (b) above. The Trustees
shall be fully protected in relying upon, and each Securityholder by its
acceptance of a Capital Security hereunder agrees to indemnify and hold the
Trustees harmless against all claims or liability of any kind arising in
connection with or related to the Trustees' reliance upon any documents, forms
or information provided by any Securityholder to the Trustees. In addition, if
the Trustees have not withheld taxes on any payment made to any Securityholder,
and the Trustees are subsequently required to remit to any taxing authority any
such amount not withheld, such Securityholder shall return such amount to the
Trustees upon written demand by the Trustees. The Trustees shall be liable only
for direct (but not consequential) damages to any Securityholder due to the
Trustees' violation of the Code and only to the extent such liability is caused
by the Trustees' failure to act in accordance with its standard of care under
this Agreement. 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 Sums (as defined in the
Indenture), the Property Trustee shall promptly pay any taxes, duties
or governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trust by the United States or any other taxing
authority.
Section 4.07. PAYMENTS UNDER INDENTURE. Any amount payable hereunder to
any Holder of Capital Securities (and any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (and Owner with
respect to a Holder's Capital Securities) has directly received pursuant to
Section 508 of the Indenture or Section 5.12 of this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01. INITIAL OWNERSHIP. Upon the formation of the Trust and the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02. THE TRUST SECURITIES CERTIFICATES. (a) The Capital
Securities Certificates shall be issued in minimum denominations of $100,000
Liquidation Amount (100 Capital Securities) and integral multiples of $1,000 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $1,000 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 and, if so ordered by an
Administrative Trustee, authenticated by the Property 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
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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 of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.04 and
5.05.
(b) The Capital Securities Certificates issued to Qualified Institutional
Buyers (as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")), upon original issuance, will be issued in the form of a
Global Capital Securities Certificate registered in the name of Cede & Co.
("Cede"), as the Clearing Agency's nominee, and deposited with or on behalf of
the Clearing Agency for credit by the Clearing Agency to the respective accounts
of the Owners thereof (or such other accounts as they may direct). Except as set
forth herein, record ownership of the Global Capital Security may be
transferred, in whole or in part, only to another nominee of the Clearing Agency
or to a successor of the Clearing Agency or its nominee.
(c) The Capital Securities Certificates issued to Persons other than
Qualified Institutional Buyers, upon their original issuance, shall be issued in
definitive form and may not be represented by the Global Capital Securities
Certificate.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
(e) Pending the preparation of definitive Trust Securities Certificates,
the Administrative Trustees may execute on behalf of the Trust and deliver,
temporary Trust Securities Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Trust Securities Certificates in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Administrative Trustees executing such
temporary Trust Securities Certificates may determine, as evidenced by their
execution of such Trust Securities Certificates.
If temporary Trust Securities Certificates are issued, the Trust will
cause definitive Trust Securities Certificates to be prepared without
unreasonable delay. After the preparation of definitive Trust Securities
Certificates, the temporary Trust Securities Certificates, shall be exchangeable
for definitive Trust Securities Certificates upon surrender of the temporary
Trust Securities Certificates at any office or agency of the Trust, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Trust Securities Certificates, the Administrative Trustees shall
execute and deliver in exchange therefor a like amount of definitive Trust
Securities Certificates having the same date of issuance and the same terms as
such temporary Trust Securities Certificates. Until so exchanged, the temporary
Trust Securities Certificates shall in all respects be entitled to the same
benefits under this Trust Agreement as definitive Trust Securities Certificates.
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Section 5.03. DELIVERY OF TRUST SECURITIES CERTIFICATES. On the Closing
Date, 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, executed by one authorized officer thereof, without further
corporate action by the Depositor, in authorized denominations.
Section 5.04. GLOBAL CAPITAL SECURITY. (a) The Global Capital Securities
issued under this Trust Agreement will be registered in the name of Cede, as a
nominee of the Clearing Agency, and delivered to its custodian therefor, and
such Global Capital Security shall constitute a single Capital Security for all
purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, the
Global Capital Security may not be exchanged in whole or in part for Capital
Securities registered, and no transfer of the Global Capital Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Capital Security, Cede, or other nominee thereof unless
(i) such Clearing Agency advises the Property Trustee in writing that such
Clearing Agency is no longer willing or able to continue as Clearing Agency with
respect to such Global Capital Security, and the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its sole option advises the Clearing
Agency in writing that it elects to terminate the book-entry system through the
Clearing Agency, or (iii) there shall have occurred and be continuing a
Debenture Event of Default. If a Capital Security which is not a Global Capital
Security is transferred to a Holder which desires to take delivery in the form
of a beneficial interest in a Global Capital Security, then such transfer shall
be permitted pursuant to the provisions of Section 5.05(b)(i). In addition,
beneficial interests in a Global Capital Security may be exchanged by or on
behalf of the Clearing Agency for certificated Capital Securities upon transfer
of such beneficial interests to a non-Qualified Institutional Buyer.
(c) If the Global Capital Security is to be exchanged for Capital
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Clearing Agency or its nominee to the Securities Registrar for exchange or
cancellation as provided in this Article V. If the Global Capital Security is to
be exchanged for Capital Securities or canceled in part, or if a Capital
Security is to be exchanged in whole or in part for a beneficial interest in the
Global Capital Security, then either (i) such Global Capital Security shall be
so surrendered for exchange or cancellation as provided in this Article V or
(ii) the aggregate Liquidation Amount thereof shall be reduced, subject to
Section 5.02, or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the aggregate Liquidation Amount of such
Capital Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the
Security Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of the Global Capital Security by the Clearing Agency
and Clearing Agency Participants, accompanied by registration instructions
executed by an Administrative Trustee on behalf of the Trust and, to the extent
required in Section 5.05(c), a Restricted Capital Securities Certificate, the
Property Trustee shall, subject to this Article V, countersign and make
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available for delivery any executed Capital Securities delivered to it issuable
in exchange for such Global Capital Security (or any portion thereof) in
accordance with the instructions of the Clearing Agency. The Property Trustee
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.
(d) The Clearing Agency or its nominee, as the registered owner of the
Global Capital Security, shall be considered the Holder of the Capital
Securities represented by the Global Capital Security for all purposes under
this Trust Agreement and the Capital Securities, and owners of beneficial
interests in the Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to have any of the individual Capital Securities represented by the
Global Capital Security registered in their names, shall not receive nor be
entitled to receive physical delivery of any such Capital Securities in
definitive form and shall not be considered the Holders thereof under this Trust
Agreement. Accordingly, any such Owner's beneficial interest in the Global
Capital Security shall be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Clearing Agency or its
nominee. The Securities Registrar and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Trust Agreement relating to
the Global Capital Securities (including the giving of notices or other
communications required under this Trust Agreement, the payment of the
Liquidation Amount of and Distributions on the Global Capital Securities and the
giving of instructions or directions to Owners of Global Capital Securities) as
the sole Holder of Global Capital Securities and shall have no obligations to
the Owners thereof. Neither the Property Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the Clearing
Agency.
(e) The rights of Owners of beneficial interests in the Global Capital
Security 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. Neither the Clearing Agency nor its nominee will consent or
vote with respect to the Capital Securities. Under its usual procedures, the
Clearing Agency or its nominee would mail an Omnibus Proxy to the Trust as soon
as possible after the relevant record date. The Omnibus Proxy assigns the
consenting or voting rights of the Clearing Agency or its nominee to those
Clearing Agency Participants, identified in a listing attached to such Omnibus
Proxy, to whose accounts the Capital Securities are credited on such record
date.
Section 5.05. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; CAPITAL SECURITIES CERTIFICATES;
SECURITIES ACT LEGENDS. (a) The Property Trustee shall keep or cause to
be kept at its Corporate Trust Office a register or registers for the
purpose of registering Capital Securities Certificates and Common
Securities Certificates and transfers and exchanges of Capital
Securities Certificates and Common Securities Certificates in which the
registrar and transfer agent with respect to the Capital Securities
(the "Securities Registrar"), subject to such reasonable regulations as
it may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject to
Section 5.11 in the case of Common Securities Certificates) and
registration of transfers and exchanges of Capital Securities
Certificates and Common Securities Certificates as herein provided. Such
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register is herein sometimes referred to as the "Securities Register." The
Property Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Capital Securities and transfers of Capital Securities as herein
provided. The provisions of Sections 8.01, 8.03 and 8.06 hereunder shall apply
to the Property Trustee also in its role as Securities Registrar.
Upon surrender for registration of transfer of any Capital Security at
the offices or agencies of the Property Trustee designated for that purpose, the
Administrative Trustees shall execute, and the Property Trustee shall
countersign and make available for delivery, in the name of the designated
transferee or transferees, one or more new Capital Securities of any authorized
denominations of like tenor and aggregate liquidation amount and bearing such
restrictive legends as may be required by this Trust Agreement.
At the option of the Holder, Capital Securities may be exchanged for
other Capital Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such restrictive legends as may be
required by this Trust Agreement, upon surrender of the Capital Securities to be
exchanged at such office or agency. Whenever any securities are so surrendered
for exchange, an Administrative Trustee shall execute and the Property Trustee
shall countersign and make available for delivery the Capital Securities that
the Holder making the exchange is entitled to receive.
All Capital Securities issued upon any transfer or exchange of Capital
Securities shall be the valid obligations of the Trust, entitled to the same
benefits under this Trust Agreement as the Capital Securities surrendered upon
such transfer or exchange.
Every Capital Security presented or surrendered for transfer or exchange
shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange
of Capital Securities, but the Property Trustee or the Securities Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Capital Securities.
Neither the Trust nor the Property Trustee shall be required, pursuant to
the provisions of this Section, to register the transfer of or exchange any
Capital Security so selected for redemption in whole or in part, except, in the
case of any such Capital Security to be redeemed in part, any portion thereof
not to be redeemed.
The Capital Securities will be issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000 and integral
multiples of $1,000 in excess thereof. Any transfer, sale or other disposition
of Capital Securities in a block having a Liquidation Amount of less than
$100,000 shall be deemed to be void and of no legal effect whatsoever. Any such
transferee shall be deemed not to be the Holder of such Capital Securities for
any purpose, including but not limited to the receipt of Distributions on such
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Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
(b) Certain Transfers and Exchanges. Subject to Section 5.04(c), but
notwithstanding any other provision of this Trust Agreement, transfers and
exchanges of Capital Securities and beneficial interests in a Global Capital
Security shall be made only in accordance with this Section 5.05(b) and Section
5.04(c).
(i) Non-Global Capital Security to Global Capital Security. If the
Holder of Capital Security (other than the Global Capital Security)
wishes at any time to transfer all or any portion of such Capital
Security to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Global Capital Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(i) and
subject to the Applicable Procedures. Upon receipt by the Securities
Registrar of (A) such Capital Security as provided in Section 5.05(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Capital Security in a specified
liquidation amount not greater than the liquidation amount of such
Capital Security to be credited to a specified Clearing Agency
Participant's account, (B) a Capital Securities Certificate duly executed
by such Holder or such Holder's attorney duly authorized in writing, and
(C) a certification substantially similar to that attached hereto as
Exhibit D, then the Securities Registrar shall cancel such Capital
Security (and issue a new Capital Security in respect of any
untransferred portion thereof) and increase the aggregate Liquidation
Amount of the Global Capital Security by the specified Liquidation Amount
as provided in Section 5.04(c).
(ii) Non-Global Capital Security to Non-Global Capital Security. A
Capital Security that is not a Global Capital Security may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Capital Security that is not a Global Capital Security as
provided in Section 5.05(a); provided that if the Capital Security to be
transferred in whole or in part is a Restricted Capital Security, the
Securities Registrar shall have received a Restricted Capital Securities
Certificate duly executed by the transferor Holder or such Holder's
attorney duly authorized in writing.
(iii) Exchanges Between Global Capital Security and Non-Global
Capital Security. A beneficial interest in the Global Capital Security
may be exchanged for a Capital Security that is not a Global Capital
Security only as provided in Section 5.04.
(iv) Limitations Relating to Liquidation Amount. Notwithstanding
any other provision of this Trust Agreement and unless otherwise
specified as permitted by this Trust Agreement, Capital Securities or
portions thereof may be transferred or exchanged only in Liquidation
Amounts of not less than $100,000 and integral multiples of $1,000 in
excess thereof. Any transfer, exchange or other disposition of Capital
Securities in contravention of this Section 5.05(b)(iv) shall be deemed
to be void and of no legal effect whatsoever, any such transferee shall
be deemed not to be the Holder or owner of any beneficial interest in
such Capital Securities for any
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purpose, including but not limited to the receipt of interest payable on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
(c) Restricted Securities Legend. (i) Except as set forth in this Section
5.05(c), all Capital Securities shall bear a Restricted Capital Securities
legend substantially in the following form:
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR
ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE
OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH
THE CORPORATION OR ANY "AFFILIATE" OF THE CORPORATION WAS THE OWNER OF
THIS CAPITAL SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY) ONLY
(A) TO THE CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) AS LONG AS THIS
CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (A)(l), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE TRUST
AND GENAMERICA PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
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(ii) PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE
TRUST A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A
TO THE OFFERING MEMORANDUM DATED JUNE 5, 1997. SUCH HOLDER FURTHER AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(ii) Subject to the following paragraphs of this Section 5.05(c),
a new Capital Security (other than a Global Capital Security) that does
not bear a Restricted Capital Securities Legend may be issued in exchange
for or in lieu of a Restricted Capital Security or any portion thereof
that bears such a legend if, in the Depositor's judgment, placing such a
legend upon such new Capital Security is not necessary to ensure
compliance with the registration requirements of the Securities Act, and
the Property Trustee, at the written direction of the Trust in the form
of an Officers' Certificate, shall countersign and deliver such a new
Capital Security as provided in this Article V.
(iii) Notwithstanding the foregoing provisions of this Section
5.05(c), a successor Capital Security of a Capital Security that does not
bear a Restricted Capital Securities Legend shall not bear such form of
legend unless the Depositor has reasonable cause to believe that such
successor Capital Security is a "restricted security" within the meaning
of Rule 144 under the Securities Act, in which case the Property Trustee,
at the written direction of the Trust in the form of an Officer's
Certificate, shall countersign and deliver a new Capital Security bearing
a Restricted Capital Securities Legend in exchange for such successor
Capital Security as provided in this Article V.
(iv) Upon any sale or transfer of a Restricted Capital Security
(including any Restricted Capital Security represented by a Global
Capital Security) pursuant to an effective registration statement under
the Securities Act or pursuant to Rule 144 under the Securities Act after
such registration ceases to be effective: (A) in the case of any
Restricted Capital Security that is a definitive Capital Security, the
Securities Registrar shall permit the Holder thereof to exchange such
Restricted Capital Security for a definitive Capital Security that does
not bear the Restricted Securities Legend and rescind any restriction on
the transfer of such Restricted Capital Security; and (B) in the case of
any Restricted Capital Security that is represented by a Global Capital
Security, the Securities Registrar shall permit the Holder of such Global
Capital Security to exchange such Global Capital Security for another
Global Capital Security that does not bear the Restricted Securities
Legend.
(v) If Restricted Capital Securities are being presented or
surrendered for transfer or exchange then there shall be (if so required
by the Property Trustee), (A) if such Restricted Capital Securities are
being delivered to the Securities Registrar by a Holder for registration
in the name of such Holder, without transfer, a certification from such
Holder to that effect; or (B) if such Restricted Capital Securities are
being transferred, if the Trust or Securities Registrar so requests,
evidence reasonably
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satisfactory to them as to the compliance with the restrictions set forth in the
Restricted Capital Securities Legend.
Section 5.06. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and cause to be made available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 5.07. PERSONS DEEMED SECURITYHOLDERS. Prior to due presentation
of a Trust Securities Certificate for registration of transfer, the
Administrative 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 5.08. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES. The
duties and responsibilities of the Depositor and any other party to provide any
list of Securityholders shall be as set forth in the Trust Indenture Act,
including Section 312 of such Trust Indenture Act. Each Holder, by receiving and
holding a Trust Securities Certificate, and each Owner shall be deemed to have
agreed not to hold either the Depositor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 5.09. MAINTENANCE OF OFFICE OR AGENCY. The Administrative
Trustees shall maintain an office or offices or agency or agencies where Capital
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 Corporate Trust Office of the Property Trustee, which
address is c/o Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the office for such purposes. Such
offices may also consist of the principal office of any Paying Agent or the
principal office of the Securities Registrar. The Administrative Trustees shall
give prompt written
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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 5.10. APPOINTMENT OF PAYING AGENT. The Paying Agent 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 in their sole discretion. The Paying Agent shall initially be the Bank,
and any co-paying agent chosen by the Bank, and acceptable to the Administrative
Trustees and the Depositor. Any Person acting as Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the 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 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On the Closing
Date, the Depositor shall acquire and thereafter shall retain beneficial and
record ownership of the Common Securities. Any attempted transfer of the Common
Securities other than as set forth in the preceding sentence shall be void;
provided that any permitted successor of the Depositor under the 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 substantially "THIS CERTIFICATE IS NOT
TRANSFERABLE".
Section 5.12. RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.09, 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 except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and
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in this Trust Agreement. The Trust Securities shall have no preemptive or
similar rights and when issued and delivered to Securityholders against payment
of the purchase price therefor and upon such payment will be fully paid and
nonassessable by the Trust. The Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in aggregate principal amount of the outstanding Debentures fail
to declare the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 25% in Liquidation Amount of the Capital
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due and payable, provided that the payment of principal and
interest on such Debentures remains subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, if the holders of a majority in aggregate principal amount of the
outstanding Debentures fail to annul any such declaration and waive such
default, the Holders of a majority in Liquidation Amount of the Capital
Securities, by written notice to the Depositor and the Debenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee
a sum sufficient to pay:
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture) on all of the
Debentures,
(B) the principal of (and premium, if any, on) any
Debenture which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Debentures, and
(C) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Debenture Events of Default, other than the non-payment
of the principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 513 of the
Indenture. The holders of a majority in aggregate Liquidation Amount of
the Capital Securities may, on behalf of the Holders of all the Capital
Securities, waive any past default under the Indenture, except a default
in the payment of principal of (or premium, if any) or interest
(including any Additional Interest, as defined in the Indenture) on any
Debenture
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(unless such default has been cured and a sum sufficient to pay all
matured installments of interest (including any Additional Interest, as
defined in the Indenture) and principal due otherwise than by
acceleration (and premium, if any) has been deposited with the Debenture
Trustee) or a default in respect of a covenant or provision which under
the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Debenture. Upon such waiver, any such default
or Event of Default shall cease to exist, and any default or Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which are represented by Global Capital Securities
Certificates, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration or acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.12(b).
(c) For so long as any Capital Securities remain outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 501(1)
or 501(2) of the Indenture, any Holder of Capital Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 508 of the Indenture, for enforcement of payment to such Holder of the
principal amount of (and premium, if any) or interest (including any Additional
Interest, as defined in the Indenture) on Debentures having a principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.12(b) and (c), the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders of, or in respect of, the Debentures.
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ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01. LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Section 10.03 and in the
Indenture and as otherwise required by law, no Holder of Capital 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, the
Trustees 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 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 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 Liquidation Amount of the
Outstanding Capital Securities; provided, however, that where a consent under
the 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 Capital Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of Capital Securities, except by a subsequent vote of the Holders of Capital
Securities. The Property Trustee shall notify all Holders of the Capital
Securities of any notice of default received from the Debenture Trustee. In
addition to obtaining the foregoing approvals of the Holders of the Capital
Securities, prior to taking any of the foregoing actions, the Trustees shall, at
the expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not fail to be classified as a grantor
trust for United States Federal income tax purposes on account of such action.
(c) Except as provided in Section 10.03, if any proposed amendment to the
Trust Agreement provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect in any material respect the powers,
preferences or special rights of the Capital 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 Capital 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 Capital Securities. No
amendment to this Trust Agreement may be made if, as a result of such amendment,
the Trust would fail to be classified as a grantor trust for United States
Federal income tax purposes or would lose its exemption from status as an
"investment company" under the Investment Company Act.
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Section 6.02. NOTICE OF MEETINGS. Notice of all meetings of the Capital
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Administrative Trustees pursuant to Section 10.09 to each Capital
Securityholder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
Any and all notices to which any Capital Securityholder hereunder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Capital Securityholder of record at
his last known address as recorded on the Securities Register.
Section 6.03. MEETINGS OF CAPITAL 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 Capital Securityholders of record of at least 25% in aggregate
Liquidation Amount of the Outstanding Capital Securities and the Administrative
Trustees or the Property Trustee may, at any time in their discretion, call a
meeting of Capital Securityholders to vote on any matters as to the which
Capital Securityholders are entitled to vote.
Capital Securityholders of record of at least 50% in aggregate
Liquidation Amount of the Outstanding Capital Securities, present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Capital
Securityholders of record present, in person or by proxy, holding at least a
majority in aggregate Liquidation Amount of the Capital Securities held by the
Capital Securityholders of record present, either in person or by proxy, at such
meeting shall constitute the action of the Securityholders, 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 $1,000 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
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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. No proxy shall be valid more than three years after its date of
execution.
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 at least a majority in aggregate Liquidation Amount of
all Outstanding Trust Securities 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. The Administrative
Trustees shall cause a notice of any matter upon which action by written consent
of the Securityholders is to be taken, to be given to each Holder of record of
the Outstanding Capital Securities in the same manner as that set forth in
Section 6.02 for notice of meetings.
Section 6.07. RECORD DATE FOR VOTING AND OTHER PURPOSES. For the purposes
of determining the Securityholders who are entitled to notice of and to vote at
any meeting or by written consent, or to participate in any distribution on the
Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees or the Property Trustee may from time to time fix a
date, not more than 90 days prior to the date of any meeting of Securityholders
or the payment of distribution or other action, as the case may be, as a record
date for the determination of the identity of the Securityholders of record for
such purposes.
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
or Owners may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders or Owners in person
or by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to an Administrative Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders or Owners signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.01) conclusive in favor of the
Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
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The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the 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 of Trust
Securities 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, 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.
A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any Person.
Section 6.09. INSPECTION OF RECORDS. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.01. REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE PROPERTY
TRUSTEE. The Bank and the Property Trustee, each severally on behalf of and as
to itself, as of the date hereof, and each successor Property Trustee at the
time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (the term "Bank" being used to refer to such
successor Property Trustee in its separate corporate capacity) hereby represents
and warrants (as applicable) as to itself only and for the benefit of the
Depositor and the Securityholders that:
(a) the Bank is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
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(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 to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(d) the execution, delivery and performance by the Bank of this Trust
Agreement have been duly authorized by all necessary corporate and other 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 State of Delaware or the
United States governing the banking or trust powers of the Bank and the Property
Trustee or any order, judgment or decree applicable to the Property Trustee or
the Bank;
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Bank or the Property Trustee contemplated herein or therein 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
or the Property Trustee or under the laws of the State of Delaware;
(f) there are no proceedings pending or, to the best of the Bank's
knowledge, threatened against or affecting the Bank or the Property 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 to
enter into or perform its obligations as one of the Trustees under this Trust
Agreement; and
(g) the principal place of business of the Property Trustee is
located in the State of Delaware.
Section 7.02. REPRESENTATIONS AND WARRANTIES OF PARENT. The Parent hereby
represents and warrants for the benefit of the Securityholders that:
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(a) this Trust Agreement has been duly authorized, executed and
delivered by Parent and constitutes the valid and legally binding
agreement of Parent enforceable against Parent in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(b) the Trust Securities Certificates issued on the Closing Date
on behalf of the Trust have been duly authorized and will have been duly
and validly executed, issued and delivered by the Trustees pursuant to
the terms and provisions of, and in accordance with the requirements of,
this Trust Agreement and the Securityholders will be, as of each such
date, entitled to the benefits of this Trust Agreement; and
(c) 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 Bank or the Property
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
Section 8.01. CERTAIN DUTIES AND RESPONSIBIL1TIES.
(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 as if such Act were applicable to this Trust Agreement.
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 it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section. No Administrative Trustee
shall be liable for its act or omission as a result of such Person's gross
negligence or willful misconduct. To the extent that, at law or in equity, any
Trustee has duties and liabilities relating to the Trust or to the Holders, such
Trustee shall not be liable to the Trust or to any Holder for such Trustee's
good faith reliance on the provisions of this Trust Agreement. The provisions of
this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed
by the Depositor and the Holders to replace such other duties and liabilities of
the Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance
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with the terms hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the revenue and proceeds from the
Trust Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement and no implied covenants shall be read into this Trust Agreement
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived), the Property Trustee shall exercise such of the
rights and powers vested in it by this Trust Agreement, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of judgment
made in good faith by an authorized officer of the Property Trustee, unless it
shall be proved that the Property Trustee was negligent in ascertaining the
pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in Liquidation Amount of
the Capital Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Debentures and the Payment Account
shall be to deal with such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor. Money
held by the Property Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.01 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective
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duties under this Trust Agreement, nor shall the Property Trustee be liable for
the default or misconduct of the Administrative Trustees or the Depositor.
Section 8.02. CERTAIN NOTICES. Within five Business Days after the
occurrence of any Event of Default, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.09, notice of any Event of
Default actually known to the Property Trustee to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Administrative Trustees shall transmit, in the
manner and to the extent provided in Section 10.09, notice of such exercise to
the Securityholders and the Property Trustee, unless such exercise shall have
been revoked.
Section 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the
provisions of Section 8.01 and except as provided by law:
(a) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous or inconsistent
with any other provisions contained herein or (iii) the Property Trustee
is unsure of the application of any provision of this Trust Agreement,
then, except as to any matter as to which the Capital 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; 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;
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(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officer's Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officer's Certificate which, upon receipt of such request,
shall be promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or reregistration thereof;
(f) the Property Trustee may (at the expense of Depositor) consult
with counsel (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the written advice
of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon; the Property Trustee shall have the
right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the 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;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Securityholders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided that the Property Trustee shall
be responsible for its own negligence or misconduct with respect to
selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may
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request instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct
the Property Trustee under the terms of the Trust Securities in respect
of such remedy, right or action, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in acting in accordance with such
instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this Trust
Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust and the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
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, subject to Sections 8.08 and 8.13, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
Section 8.06. COMPENSATION; INDEMNITY; FEES.
The Trust shall:
(a) pay to the Trustees from time to time reasonable compensation for all
services rendered by them hereunder and in the case of the Property Trustee,
such compensation as is separately agreed by the Depositor and the Property
Trustee (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, 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
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attributable to its negligence or bad faith (or, in the case of the
Administrative Trustees, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct).
The Depositor agrees to indemnify each of the Trustees or any predecessor
Trustee for, and to hold the Trustees harmless against, any loss, damage,
claims, liability, tax, penalty or expense of any kind and nature whatsoever
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder except any such expense, disbursement or advance as may be
attributable to such Trustee's negligence, bad faith or willful misconduct (or,
in the case of the Administrative Trustees, any such expense, disbursement or
advance as may be attributable to its, his or her gross negligence, bad faith or
willful misconduct). The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement. To secure the Trustees' rights under this
Section 806, the Property Trustee shall have a lien against the Trust Property
which lien shall be subordinate to the rights of the Securityholders but prior
to the rights of Depositor as to any Trust Property.
Section 8.07. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such (as if such Act were applicable to this Trust Agreement) and
has a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section and to the extent permitted by the Trust Indenture Act, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Trustee with respect to the Trust
Securities that shall either be (i) a natural person who is at least 21 years of
age and a resident of the State of Delaware or (ii) a legal entity with its
principal place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 8.08. CONFLICTING INTERESTS. If the Property Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall either eliminate such
interest or resign, to the extent and in the manner
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provided by, and subject to the provisions of, the Trust Indenture Act (as if
such Act were applicable to this Trust Agreement) and this Trust Agreement.
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 Depositor and the Administrative Trustees, by agreed action of the majority
of such Trustees, shall have power to appoint, and upon the written request of
the Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law, to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Trust Agreement. 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 also have the 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:
(a) The Trust Securities shall be executed by one or more Administrative
Trustees, and the Trust Securities shall be delivered by the Property Trustee,
and all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required to
be deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be exercised and performed by
such co-trustee or separate trustee.
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(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Depositor. Upon the written request of the Property Trustee, the Depositor
shall join with the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
Section 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor 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.
Subject to the immediately preceding paragraph, 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, at the expense of the Trust, any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee with respect to the Trust Securities.
Subject to the following sentence, any of the Trustees may be removed at
any time by Act of the Common Securityholder. If a Debenture Event of Default
shall have occurred and be continuing, the Property Trustee may be removed at
such time by Act of the Holders of a majority in Liquidation Amount of the
Outstanding Capital Securities, delivered to the Property Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Relevant Trustee, or if a vacancy shall occur in the office
of any Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder 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
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with the applicable requirements of Section 8.11. If the Property Trustee shall
resign, be removed or become incapable of continuing to act as the Property
Trustee at a time when a Debenture Event of Default shall have occurred and be
continuing, the Capital Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Capital 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 such successor Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become
incapable of continuing to act as Administrative Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing, the Common
Securityholder may appoint a successor Administrative Trustee, which successor
Trustee shall comply with the applicable requirements of Section 8.11 or the
Common Securityholder may reduce the number of Administrative Trustees pursuant
to Section 8.17(a). If no successor Relevant Trustee with respect to the Trust
Securities shall have been so appointed by the Common Securityholder or the
Capital Securityholders 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 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 10.09 and shall give notice 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 if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Property 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 (a) the
unanimous act of remaining Administrative Trustees if there are at least two of
them prior to such vacancy or (b) otherwise by the Depositor (with the successor
in each case being an individual who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this Trust Agreement, in
the event the Depositor believes that any Administrative Trustee or a Property
Trustee who is a natural person, 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 a Property 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 case of the
appointment hereunder of a successor Relevant Trustee with respect to all Trust
Securities and the Trust, every such successor Relevant Trustee so appointed
shall execute, acknowledge and deliver to the Trust and to the retiring Relevant
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring
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Relevant Trustee shall become effective and such successor Relevant Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant Trustee; but, on the
request of the Depositor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Relevant Trustee all the rights,
powers and trusts of the retiring Relevant Trustee and shall duly assign,
transfer and deliver to such successor Relevant Trustee all property and money
held by such retiring Relevant Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee with
respect to the Trust Securities and the Trust, the retiring Relevant Trustee and
each successor Relevant Trustee with respect to the Trust Securities shall
execute and deliver an amendment hereto wherein each successor Relevant Trustee
shall accept such appointment and which (a) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the Trust and
(b) shall add to or change any of the provisions of this Trust Agreement as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Relevant Trustee, it being 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 execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Trust; but, on
request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF A TRUSTEE. Any Person into which the Property Trustee or
any Administrative Trustee which is not a natural person may be merged
or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of any such Relevant
Trustee, shall be the successor of such Relevant Trustee hereunder,
provided such Person shall be otherwise
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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. In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.14. REPORTS BY PROPERTY TRUSTEE.
(a) Within 60 days after December 31 of each year commencing with
December 31, 1997 the Property Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear in the Securities Register,
and to the Depositor, a brief report dated as of such December 31 with respect
to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
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(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; and
(iii) any change in the property and funds in its possession as Property
Trustee since the date of its last report and any action taken by the Property
Trustee in the performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to 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 the PORTAL System or any
successor thereto if the Capital Securities are listed thereon or, with the
Commission (in either case as may be required by the rules thereof) and with the
Depositor.
Section 8.15. REPORTS TO THE PROPERTY TRUSTEE. Each of 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. At the
Closing and as thereafter required, each of the Depositor and the Administrative
Trustees on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Trust Agreement that relate to any of the matters set forth in Section 3
14(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(l) of the Trust Indenture Act may
be given in the form of an Officers' Certificate.
Section 8.17. NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the Holder of all
the Common Securities, by written instrument may increase or decrease the number
of Administrative Trustees.
(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.
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(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul,
dissolve or terminate 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 governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
Section 8.19. VOTING. Except as otherwise provided in this Trust
Agreement, the consent or approval of the Administrative Trustees shall require
consent or approval by not less than a majority of the Administrative Trustees,
unless there are only two, in which case both must consent.
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01. TERMINATION UPON EXPIRATION DATE. The Trust shall
automatically terminate on June 30, 2032, (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"):
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor at
any time (which direction is optional and wholly within the discretion of the
Depositor) to terminate the Trust and distribute Debentures to the
Securityholders in exchange for the Capital Securities;
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(c) the redemption of all of the Capital Securities in
connection with the redemption of all the Debentures; and
(d) the entry of 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, and as soon as practicable thereafter, the Trustees
shall cause to be filed a certificate of cancellation relating to the Trust with
the Secretary of State of the State of Delaware.
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: (a) 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; (b) the payment of any expenses
owed by the Trust; (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders; and (d) the filing
of a certificate of cancellation relating to the Trust with the Secretary of
State of the State of Delaware.
Section 9.04. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.02 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.04(d).
Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of 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.
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(b) Except where Section 9.02(c) or 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 a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.02 (c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) The Depository Trust Company ("DTC") or its nominee, as the
record Holder of the Capital Securities, will receive a registered global
certificate or certificates representing the Debentures to be delivered upon
such distribution, (iii) any Capital Securities Certificates not held by the DTC
or its nominee will be deemed to represent a Like Amount of Debentures, bearing
accrued and unpaid interest in an amount equal to the accumulated and unpaid
Distributors 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), (iv) certificates representing a Like Amount
of Debentures will be issued to the Holder of the Common Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (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, and (vi) the
Depositor shall use its best efforts to have the Debentures listed for quotation
on the PORTAL System or such other quotation system as the Capital Securities
are then listed, if any.
(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 payment at the stated maturity thereof of all
principal of and interest on the Debentures 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 accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a PRO RATA basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination PRO RATA (determined as aforesaid) with Holders of Capital
Securities, except that, if an Event of Default specified in Section 501(1) or
501(2) of the Indenture has occurred and is continuing, the Capital Securities
shall have a priority over the Common Securities. In the event the Capital
Securities are issued in certificated form, the Liquidation Distribution will
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be payable at (i) the Corporate Trust Office of the Property Trustee, (ii) the
principal office of any Paying Agent, or (iii) the principal office of the
Securities Registrar; provided THAT payment of any Liquidation Distribution may
be made, at the option of the Administrative Trustees, by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Registrar or by wire transfer in immediately available funds at such
place and to such account as may be designated by the Person entitled thereto as
specified in the Securities Register.
Section 9.05. MERGER, CONSOLIDATION, AMALGAMATION OR REPLACEMENT OF THE
TRUST. The Trust may not merge, consolidate or amalgamate with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.05. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Capital
Securities or the Property Trustee, the Trust may merge, consolidate or
amalgamate with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Trust with respect to the
Capital Securities or (b) substitutes for the Capital Securities other
securities having substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Capital Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Depositor expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are approved for quotation on the PORTAL System (iv) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the Capital Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Capital Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Depositor has
received an opinion from independent counsel to the Trust experienced in such
matters to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Capital Securities (including
any Successor Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor or any permitted
successor or assignee owns all of the common securities of such successor entity
and guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Capital Securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate or merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement,
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conveyance, transfer or lease would cause the Trust or the successor entity to
be classified as other than a grantor trust for United States Federal income tax
purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. EXPENSE AGREEMENT. It is the contemplation of the parties
that the Expense Agreement shall be entered into no later than June 6, 1997.
Section 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The death or
incapacity of any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such person or any 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 10.03. AMENDMENT. (a) This Trust Agreement may be amended from
time to time by the Trustees and the Depositor, without the consent of any
Securityholders, (i) with respect to acceptance of appointment by a successor
Trustee, (ii) to cure any ambiguity, correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, provided such amendment is not inconsistent with the other provisions
of this Trust Agreement, or (iii) to modify, eliminate or add to any provisions
of this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act of 1940, as amended; provided,
however, that in the case of either clause (ii) or clause (iii), such action
shall not adversely affect in any material respect the interests of any
Securityholder and any amendments of this Trust Agreement shall become effective
when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority in
Liquidation Amount of the Trust Securities then Outstanding and (ii) the receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from status as 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 or timing of any
Distribution on the Trust Securities or otherwise
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adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on or
after such date; notwithstanding any other provision herein without the
unanimous consent of the Securityholders (such consent being obtained in
accordance with Section 6.03 or 6.06 hereof), paragraph (b) of this Section
10.03 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 (i) fail or cease to qualify, as evidenced by an
Opinion of Counsel, for an exemption from status of an "investment company"
under the Investment Company Act of 1940, as amended, or (ii) fail or cease to
be classified, as evidenced by an Opinion of Counsel, as a grantor trust for
United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Administrative Trustees.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) The Property Trustee shall not be required to enter into any
amendment to this Trust Agreement which affects its own rights, duties or
immunities under this Trust Agreement. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officer's Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement.
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 DEPOSITOR, 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
WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
Section 10.06. PAYMENTS DUE ON NON-BUSINESS DAY. If the date fixed for
any payment on any Trust Security shall be a day which is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day (except as otherwise provided in Section
4.01(a) and 4.02(d)), with the same force and effect as though made on the date
fixed for such payment, and no Distribution shall accumulate on such unpaid
amount thereon for the period after such date.
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Section 10.07. SUCCESSORS. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Trust or any
Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eight of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
Section 10.08. HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.09. REPORTS, NOTICES AND DEMANDS. Any report, notice, demand
or other communication which by any provision of this Trust Agreement is
required or permitted to be given or served to or upon any Securityholder or the
Depositor shall 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, (a) in the case of a Capital Securityholder, to such
Capital Securityholder as such Securityholder's name and address may appear on
the Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to GenAmerica Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Secretary, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇. Such notice, demand
or other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee, to Wilmington Trust Company, ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Corporate Trust Administration; and (b) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of GenAmerica Capital I
c/o Secretary." 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 10.10. 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 United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.10, 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
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the Trust may assert. The provisions of this Section 10.10 shall
survive the termination of this Trust Agreement.
Section 10.11. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act (including the duties imposed by Sections
310 to 317 of such Act through the operation of Section 318(c)) that would be
required under such Act to be a part of and govern this Agreement were to be so
qualified, the latter provision shall control. If any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 10.12. RIGHTS UNDER INDENTURE. The Trust may not assign any of
its rights under the Indenture without the prior written consent of the
Depositor.
Section 10.13. EFFECTIVENESS. This Trust Agreement shall become effective
when signed by the Depositor and the Bank.
Section 10.14. INTENTION OF THE PARTIES. It is the intention of the
parties hereto that the Trust not be characterized for United States Federal
income tax purposes as a corporation or a partnership, but rather that the Trust
be characterized as a grantor trust or otherwise in a manner and that each Owner
be treated as owning an undivided beneficial interest in the assets of the
Trust. The provisions of this Trust Agreement shall be interpreted to further
this intention of the parties.
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THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL 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 AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
GENAMERICA CORPORATION
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Investment Officer
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
as Administrative Trustee
/S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
as Administrative Trustee
/S/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
GENAMERICA CAPITAL I
THIS Certificate of Trust of GenAmerica Capital I (the "Trust"), dated May __,
1997, is being duly executed and filed by Wilmington Trust Company, a Delaware
banking corporation, as trustee, to form a business trust under the Delaware
Business Trust Act (12 DEL. C. Section 3801 ET SEQ.)
1. NAME. The name of the business trust being formed hereby is GenAmerica
Capital I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the Trust
in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has
executed this Certificate of Trust as of the date first-above written.
Wilmington Trust Company,
as trustee
By: __________________________
Name:
Title:
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EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF
THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT
Certificate Number Number of Common Securities C-l
Certificate Evidencing Common Securities
of
GenAmerica Capital I
8.525% Common Securities
(liquidation amount $1,000 per Common Security)
GenAmerica Capital I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that GenAmerica
Corporation (the "Holder") is the registered owner of ________ (_) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the 8.525% Common Securities (liquidation
amount $1,000 per Common Security) (the "Common Securities"). Except in
accordance with Section 5.11 of the Trust Agreement (as defined below) the
Common Securities are not transferable and any attempted transfer hereof other
than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of June 6, 1997, among the Holder, as Depositor, Wilmington Trust
Company, as Property Trustee, the Administrative Trustees named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, as the same may be amended from time to time (the "Trust Agreement")
including the designation of the terms of the Common Securities as set forth
therein. The Trust will furnish a copy of the Trust Agreement to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 6th day of June, 1997.
GENAMERICA CAPITAL I
By: ___________________________
Name:
Administrative Trustee
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EXHIBIT C
IF THE CAPITAL SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This Capital
Security is a Global Capital Securities Certificate within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation ("DTC") or a nominee of the
DTC. This Capital Security is exchangeable for Capital Securities Certificates
registered in the name of a person other than the DTC or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of this
Capital Security (other than a transfer of this Capital Security as a whole by
the DTC to a nominee of the DTC or by a nominee of the DTC to the DTC or another
nominee of the DTC) may be registered except in limited circumstances described
in the Trust Agreement.
Unless this Capital Security is presented by an authorized representative
of the DTC to GenAmerica Capital I or its agent for registration of transfer,
exchange or payment, and any Capital Securities Certificate issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of the DTC (and any payment hereon is made to Cede & Co. or to
such other entity as requested by an authorized representative of the DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]
Certificate Number Number of Capital Securities P- CUSIP NO.
Certificate Evidencing Capital Securities
of
GenAmerica Capital I
8.525% Capital Securities
(liquidation amount $1,000 per Capital Security)
GenAmerica Capital I, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that _________________
(the "Holder") is the registered owner of ______________ ( ) Capital Securities
of the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the GenAmerica Capital I 8.525% Capital Securities
(liquidation amount $1,000 per Capital Security) (the "Capital Securities"). The
Capital 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 Capital
Securities are set forth in, and this certificate and the Capital Securities
represented hereby and 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 June 6, 1997, among GenAmerica Corporation, a Missouri corporation, as
Depositor, Wilmington Trust Company, as Property Trustee, the Administrative
Trustees named therein, and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust, as the same may be amended from
time to time (the "Trust Agreement")
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including the designation of the terms of Capital Securities as set forth
therein. The Holder is entitled to the benefits of the Guarantee Agreement
entered into by GenAmerica Corporation, a Missouri corporation, and Wilmington
Trust Company as guarantee trustee, dated as of June 6, 1997 (the "Guarantee")
to the extent provided therein. The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the Holder without charge upon written request to
the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 6th day of June, 1997.
GENAMERICA CAPITAL I
By: _____________________________
Name:
Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the [__%] Capital Securities Referred to in the Amended
and Restated Trust Agreement.
WILMINGTON TRUST COMPANY,
as Authentication Agent and Registrar
By_____________________________________
Authorized Signature
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Capital 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 Capital Security Certificate)
Signature(s) Guaranteed: The signature(s) should be guaranteed by an
eligible quarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule l7Ad-15.
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