EXHIBIT 4.2
TRUST AGREEMENT
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TRUST AGREEMENT, dated as of December 1, 1999 (this "Trust
Agreement"), among Southern States Cooperative, Incorporated, an agricultural
cooperative corporation organized under the laws of Virginia, as depositor (the
"Depositor"), and First Union Trust Company, National Association, as trustee
(the "Delaware Trustee").
The Depositor and the Delaware Trustee hereby agree as follows:
Section 1. The Trust. The trust created hereby shall be known as
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SOUTHERN STATES CAPITAL TRUST II (the "Trust"), in which name the Delaware
Trustee or the Depositor, to the extent provided herein, may conduct the
business of the Trust, make and execute contracts, and ▇▇▇ and be sued.
Section 2. The Trust Estate. The Depositor hereby assigns,
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transfers, conveys and sets over to the Trust the sum of $10. The Delaware
Trustee hereby acknowledges receipt of such amount in trust from the Depositor,
which amount shall constitute the initial trust estate. It is the intention of
the parties hereto that the Trust created hereby constitute a business trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. (S) 3801 et seq.
(the "Business Trust Act") and that this document constitute the governing
instrument of the Trust. The Delaware Trustee is hereby authorized and directed
to execute and file a certificate of trust with the Secretary of State of the
State of Delaware in accordance with the provisions of the Business Trust Act.
Section 3. Amended and Restated Trust Agreement. The Depositor, the
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Delaware Trustee and certain other parties will enter into an Amended and
Restated Trust Agreement, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Capital Securities (as defined below) and the Common Securities (as defined
below) of the Trust. Prior to the execution and delivery of such Amended and
Restated Trust Agreement, the Delaware Trustee shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain, prior to such
execution and delivery, licenses, consents or approvals required by applicable
law or otherwise.
Section 4. Certain Authorizations. In connection with the issuance
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and sale of the Trust Securities (as defined below) and the purchase of the
Debentures (as
defined below), the Depositor and the Delaware Trustee hereby authorize and
direct the Depositor, acting on its own behalf and on behalf of the Trust, and
the Depositor shall have the exclusive power and authority to cause the Trust
to:
(i) to enter into an Underwriting Agreement in such form as approved
by the Depositor among the Depositor, each of the underwriters
listed on Schedule A thereto (the "Underwriters") and certain
other parties, pursuant to which the Trust will issue and sell
to the Underwriters certain of its Capital Securities
representing undivided beneficial interests in the assets of the
Trust (the "Capital Securities") having certain preferences over
the common securities (as defined below) as more particularly
described in the Amended and Restated Trust Agreement and such
Capital Securities,
(ii) to sell to the Depositor certain of its Common Securities
representing undivided beneficial interests in the assets of the
Trust (the "Common Securities)" being subordinate in certain
respects to the Capital Securities as more particularly
described in the Amended and Restated Trust Agreement and such
Common Securities (the Common Securities and, together with the
Capital Securities, being the "Trust Securities"),
(iii) to purchase with the proceeds from the issuance and sale of the
Trust Securities certain Junior Subordinated Deferrable Interest
Debentures to be issued by the Depositor (the "Debentures"),
(iv) to prepare and file with the Securities and Exchange Commission
a registration statement, in preliminary and final form, with
respect to the issuance and sale of the Capital Securities and
such other filings in connection therewith as may be required by
the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, and the Trust Indenture Act of 1939, as
amended, and
(v) to execute and be bound by all documents or instruments, perform
all duties and powers, and do all things for and on behalf of
the Trust in all matters necessary or incidental to the
foregoing.
Section 5. Trustees. The number of trustees shall initially be one
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and thereafter shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor, which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at
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any time. Any Trustee may resign upon 30 days prior notice to the Depositor;
provided, however, that such notice shall not be required if it is waived by the
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Depositor.
Section 6. Limitation Applicable to the Delaware Trust. First Union
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Trust Company, National Association, in its capacity as Delaware Trustee, shall
not have any of the powers or duties of the Depositor created hereby, except as
expressly provided in Section 4 hereof or as required by the Business Trust Act
and shall be a Trustee of the Trust for the sole purpose of satisfying the
requirements of Section 3807 of the Business Trust Act.
Section 7. Compensation; Expenses; Indemnity. The Depositor agrees:
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(a) to pay to the Delaware Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as may be agreed by the
Depositor and the Delaware Trustee from time to time (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Delaware Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the Delaware Trustee in
accordance with any provision of this Trust Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence, bad faith or wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) the Delaware Trustee (individually and as Delaware Trustee),
(ii) of any affiliate of the Delaware Trustee (individually and as Delaware
Trustee) and (iii) any officer, director, shareholder, employee, representative
or agent of the Delaware Trustee (individually and as Delaware Trustee)
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of its own
negligence, bad faith or wilful misconduct with respect to such acts or
omissions.
Section 8. Governing Law. This Trust Agreement shall be governed by,
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and construed in accordance with, the laws of the State of Delaware, without
regard for
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the conflicts of laws provisions thereof; provided, however, that the provisions
of 12 Del. C. (S) 3540 shall not apply to the Trust.
Section 9. Consent to Jurisdiction; Service of Process. Each of the
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parties hereto hereby consents to (i) the non-exclusive jurisdiction of courts
of the State of Delaware or any federal court sitting in Wilmington, Delaware
for the purpose of any suit, action or proceeding relating to or arising out of
this Trust Agreement and (ii) service of process in connection therewith by
mail. The foregoing shall not be construed to prevent any party from bringing
any suit, action or proceeding in any other jurisdiction or from serving process
by any other means.
Section 10. Counterparts. This Trust Agreement may be executed in
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one or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first written above.
SOUTHERN STATES COOPERATIVE,
INCORPORATED, as Depositor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President &
Chief Financial Officer
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION,
as Delaware Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
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