EXHIBIT 4.8
INDEPENDENT CAPITAL TRUST IV
AMENDED AND RESTATED
DECLARATION OF TRUST
AMONG
INDEPENDENT BANK CORP., AS SPONSOR,
THE BANK OF NEW YORK, AS PROPERTY TRUSTEE,
THE BANK OF NEW YORK (DELAWARE), AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF APRIL 12, 2002
TABLE OF CONTENTS
PAGE
Article I DEFINED TERMS..........................................................................................2
1.1 Definitions....................................................................................2
Article II ESTABLISHMENT OF THE TRUST...........................................................................10
2.1 Name..........................................................................................10
2.2 Office of the Delaware Trustee; Principal Place of Business...................................10
2.3 Organizational Expenses.......................................................................10
2.4 Issuance of the Preferred Securities..........................................................11
2.5 Issuance of the Common Securities; Subscription and Purchase of Debentures....................11
2.6 Declaration of Trust..........................................................................11
2.7 Authorization to Enter into Certain Transactions..............................................11
2.8 Assets of Trust...............................................................................15
2.9 Title to Trust Property.......................................................................16
Article III PAYMENT ACCOUNT.....................................................................................16
3.1 Payment Account...............................................................................16
Article IV DISTRIBUTIONS; REDEMPTION............................................................................16
4.1 Distributions.................................................................................16
4.2 Redemption....................................................................................17
4.3 Subordination of Common Securities............................................................20
4.4 Payment Procedures............................................................................21
4.5 Tax Returns and Reports.......................................................................21
4.6 Payment of Taxes, Duties, etc. of the Trust...................................................21
4.7 Payments Under Indenture......................................................................21
Article V TRUST SECURITIES CERTIFICATES.........................................................................22
5.1 Initial Ownership.............................................................................22
5.2 The Trust Securities Certificates.............................................................22
5.3 Execution, Authentication and Delivery of Trust Securities Certificates.......................22
5.4 Registration of Transfer and Exchange of Preferred Securities Certificates....................24
5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............................26
5.6 Persons Deemed Securityholders................................................................26
5.7 Access to List of Securityholders' Names and Addresses........................................26
5.8 Maintenance of Office or Agency...............................................................27
5.9 Appointment of Paying Agent...................................................................27
5.10 Ownership of Common Securities by Sponsor.....................................................28
5.11 Trust Securities Certificates.................................................................28
5.12 Notices to Clearing Agency....................................................................28
5.13 Rights of Securityholders.....................................................................28
Article VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING............................................................29
6.1 Limitations on Voting Rights..................................................................29
6.2 Notice of Meetings............................................................................31
6.3 Meetings of Preferred Securityholders.........................................................31
6.4 Voting Rights.................................................................................31
i
6.5 Proxies, etc..................................................................................31
6.6 Securityholder Action by Written Consent......................................................32
6.7 Record Date for Voting and Other Purposes.....................................................32
6.8 Acts of Securityholders.......................................................................32
6.9 Inspection of Records.........................................................................33
Article VII REPRESENTATIONS AND WARRANTIES......................................................................33
7.1 Representations and Warranties of the Bank and the Property Trustee...........................33
7.2 Representations and Warranties of the Delaware Bank and the Delaware Trustee..................35
7.3 Representations and Warranties of Sponsor.....................................................36
Article VIII TRUSTEES...........................................................................................37
8.1 Certain Duties and Responsibilities...........................................................37
8.2 Certain Notices...............................................................................38
8.3 Certain Rights of Property Trustee............................................................39
8.4 Not Responsible for Recitals or Issuance of Securities........................................41
8.5 May Hold Securities...........................................................................42
8.6 Compensation; Indemnity; Fees.................................................................42
8.7 Corporate Property Trustee Required; Eligibility of Trustees..................................43
8.8 Conflicting Interests.........................................................................43
8.9 Co-Trustees and Separate Trustee..............................................................43
8.10 Resignation and Removal; Appointment of Successor.............................................45
8.11 Acceptance of Appointment by Successor........................................................47
8.12 Merger, Conversion, Consolidation or Succession to Business...................................47
8.13 Preferential Collection of Claims Against Sponsor or Trust....................................48
8.14 Reports by Property Trustee...................................................................48
8.15 Reports to the Property Trustee...............................................................48
8.16 Evidence of Compliance with Conditions Precedent..............................................48
8.17 Number of Trustees............................................................................49
8.18 Delegation of Power...........................................................................49
8.19 Voting........................................................................................50
Article IX TERMINATION, LIQUIDATION AND MERGER..................................................................50
9.1 Termination Upon Expiration Date..............................................................50
9.2 Early Termination.............................................................................50
9.3 Termination...................................................................................50
9.4 Liquidation...................................................................................51
9.5 Mergers, Consolidations, Amalgamations or Replacements of the Trust...........................52
Article X MISCELLANEOUS PROVISIONS..............................................................................54
10.1 Limitation of Rights of Securityholders.......................................................54
10.2 Amendment.....................................................................................54
10.3 Severability..................................................................................56
10.4 Governing Law.................................................................................56
10.5 Payments Due on Non-Business Day..............................................................56
10.6 Successors....................................................................................56
10.7 Headings......................................................................................56
10.8 Reports, Notices and Demands..................................................................56
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10.9 Agreement Not to Petition.....................................................................57
10.10 Trust Indenture Act; Conflict with Trust Indenture Act........................................57
10.11 Acceptance of Terms of Trust Agreement, Guarantee and Indenture...............................58
10.12 Counterparts..................................................................................58
10.13 Exchange Act Obligations......................................................................59
EXHIBITS
Exhibit A.........Certificate of Trust
Exhibit B.........Form of Common Securities Certificate
Exhibit C.........Form of Preferred Securities Certificate
Exhibit D.........Form of Preferred Securities Certificate Authentication
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CROSS-REFERENCE TABLE
Section of Amended and Restated
Trust Indenture Act of 1939, as amended Declaration of Trust
310(a)(1).......................................................................................................807
310(a)(2).......................................................................................................807
310(a)(3).......................................................................................................807
310(a)(4)................................................................................................207(a)(ii)
310(b)..........................................................................................................808
311(a)..........................................................................................................813
311(b)..........................................................................................................813
312(a)..........................................................................................................507
312(b)..........................................................................................................507
312(c)..........................................................................................................507
313(a).......................................................................................................814(a)
313(a)(4)....................................................................................................814(b)
313(b).......................................................................................................814(b)
313(c).........................................................................................................1008
313(d).......................................................................................................814(c)
314(a)..........................................................................................................815
314(b)...............................................................................................Not Applicable
314(c)(1).......................................................................................................816
314(c)(2).......................................................................................................816
314(c)(3)............................................................................................Not Applicable
314(d)...............................................................................................Not Applicable
314(e).....................................................................................................101, 816
315(a)...............................................................................................801(a), 803(a)
315(b)....................................................................................................802, 1008
315(c).......................................................................................................801(a)
315(d).....................................................................................................801, 803
316(a)(2)............................................................................................Not Applicable
316(b)...............................................................................................Not Applicable
316(c)..........................................................................................................607
317(a)(1)............................................................................................Not Applicable
317(a)(2)............................................................................................Not Applicable
317(b)..........................................................................................................509
318(a).........................................................................................................1010
Note: This Cross-Reference Table does not constitute part of this Agreement and
shall not affect the interpretation of any of its terms or provisions.
iv
AMENDED AND RESTATED DECLARATION OF TRUST
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of April 12,
2002, among (i) INDEPENDENT BANK CORP., a Massachusetts corporation (including
any successors or assigns, the "Sponsor"), (ii) THE BANK OF NEW YORK, a
banking corporation duly organized and existing under the laws of the State of
New York as property trustee (the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the "Bank"),
(iii) THE BANK OF NEW YORK (DELAWARE), a banking corporation duly organized and
existing under the laws of the State of Delaware, as Delaware trustee (the
"Delaware Trustee," and, in its separate corporate capacity and not in its
capacity as Delaware Trustee, the "Delaware Bank") (iv) EDWARD H. SEKSAY, an
individual, ANTHONY W. DIROBBIO, an individual, and DENIS K. SHEAHAN, an
individual, each of whose address is c/o Company (each an "Administrative
Trustee" and collectively the "Administrative Trustees") (the Property Trustee,
the Delaware Trustee and the Administrative Trustees referred to collectively as
the "Trustees"), and (v) the several Holders (as hereinafter defined).
RECITALS
WHEREAS, the Sponsor, the Delaware Trustee, and EDWARD H. SEKSAY,
WILLIAM E. MATTESON and DENIS K. SHEAHAN, each as an administrative trustee,
have heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Declaration of
Trust dated as of March 18, 2002 (the "Original Trust Agreement") and by the
execution and filing by the Delaware Trustee and the Administrative Trustees
with the Secretary of State of the State of Delaware of the Certificate of
Trust, filed on March 18, 2002, the form of which is attached as EXHIBIT A;
and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among
other things, (i) the issuance of the Common Securities (as defined herein)
by the Trust (as defined herein) to the Sponsor; (ii) the issuance and sale
of the Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein); (iii) the acquisition by the
Trust from the Sponsor of all of the right, title and interest in the
Debentures (as defined herein); and (iv) the appointment of the Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties 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:
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ARTICLE I
DEFINED TERMS
1.1 DEFINITIONS
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned
to them in this Article I and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount equal to accrued interest,
including compound interest, in arrears and paid by the Sponsor on a Like
Amount of Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Administrative Trustee" means each of Edward H. Seksay, Anthony W.
DiRobbio and Denis K. Sheahan, 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" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person; (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; (d) a partnership in which the specified Person is a
general partner; (e) any officer or director of the specified Person; and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
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"Authenticating Agent" means an authenticating agent with respect to
the Preferred Securities appointed by the Property Trustee pursuant to Section
5.3.
"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 adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking liquidation or reorganization of or in respect
of such Person under the United States Bankruptcy Code of 1978, as amended, or
any other similar applicable federal or state law, and the continuance of any
such decree or order unvacated and unstayed for a period of 90 days; or the
commencement of an involuntary case under the United States Bankruptcy Code of
1978, as amended, in respect of such Person, which shall continue undismissed
for a period of 90 days or entry of an order for relief in such case; or the
entry of a decree or order of a court having jurisdiction in the premises for
the appointment on the ground of insolvency or bankruptcy of a receiver,
custodian, liquidator, trustee or assignee in bankruptcy or insolvency of such
Person or of its property, or for the winding up or liquidation of its affairs,
and such decree or order shall have remained in force unvacated and unstayed for
a period of 90 days; or
(b) the institution by such Person of proceedings to be adjudicated a
voluntary bankrupt, or the consent by such Person to the filing of a bankruptcy
proceeding against it, or the filing by such Person of a petition or answer or
consent seeking liquidation or reorganization under the United States Bankruptcy
Code of 1978, as amended, or other similar applicable federal or state law, or
the consent by such Person to the filing of any such petition or to the
appointment on the ground of insolvency or bankruptcy of a receiver or custodian
or liquidator or trustee or assignee in bankruptcy or insolvency of such Person
or of its property, or shall make a general assignment for the benefit of
creditors.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the Clerk
of the Sponsor to have been duly adopted by the Sponsor's Board of
Directors, or such committee of the Board of Directors or officers of the
Sponsor to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the appropriate Trustee.
"Business Day" means a day other than a Saturday or Sunday, a day on
which banking institutions in Rockland, Massachusetts or The City of New York
are authorized or required by law, executive order or regulation to remain
closed, or a day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Debenture Trustee is closed for business.
"Certificate Depositary Agreement" means the letter of
representations among Sponsor, Trust and DTC, as the initial Clearing Agency,
dated as of the Closing Date.
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"Certificate of Trust" means the certificate of trust filed with the
Secretary of State of the State of Delaware with respect to the Trust, as
amended or restated from time to time.
"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. DTC shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank or other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument, such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as EXHIBIT B.
"Company" means Independent Bank Corp., a Massachusetts corporation.
"Corporate Trust Office" means the office at which, at any particular
time, the corporate trust business of the Property Trustee or the Debenture
Trustee, as the case may be, shall be principally administered, which office at
the date hereof, in each such case, is located at 101 Barclay Street, New York,
New York 10286.
"Debenture Event of Default" means an "Event of Default" as defined in
Section 7.1 of the Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as specified in Section 1.1
of the Indenture.
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"Debenture Trustee" means The Bank of New York, a banking organization
organized under the laws of the State of New York and any successor thereto, as
trustee under the Indenture.
"Debentures" means up to $25,773,200 principal amount of the
Sponsor's 8.375% Junior Subordinated Debentures due April 30, 2032 issued
pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means Preferred
Securities Certificates issued in certified, fully registered form as provided
in Section 5.4.
"Delaware Bank" has the meaning specified in the Preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Delaware Code Sections 3801 ET SEQ. as it may be amended from
time to time.
"Delaware Trustee" means the commercial bank or trust company
identified as the "Delaware Trustee" in the Preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Depositary" means DTC or any successor thereto.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance of which or the breach of
which is dealt with in clause (b) or (c), above) and
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continuation of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the defaulting Trustee or
Trustees by the Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Preferred Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Sponsor to appoint a successor Property Trustee
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date" has the meaning specified in Section 9.1.
"Extended Interest Payment Period" has the meaning specified in Section
4.1 of the Indenture.
"Global Preferred Securities Certificate" means a Preferred Securities
Certificate evidencing ownership of Global Preferred Securities.
"Global Preferred Security" means a Preferred Security, the ownership
and transfer of which shall be made through book entries by a Clearing Agency as
described herein.
"Guarantee" means the Preferred Securities Guarantee Agreement executed
and delivered by the Sponsor and The Bank of New York, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.
"Indenture" means the Indenture, dated as of April 12, 2002, between
the Sponsor and the Debenture Trustee, as trustee, as amended or supplemented
from time to time.
"Investment Company Act," means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this instrument.
"Investment Company Event" means the receipt by the Trust and the
Sponsor of an Opinion of Counsel, rendered by a law firm having a recognized
national tax and securities law practice, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
shall be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Preferred Securities under this
Trust Agreement, provided, however, that the Sponsor or the Trust shall have
requested and received such an Opinion of Counsel with regard to such matters
within a reasonable period of time after the Sponsor or the Trust shall have
become aware of the possible occurrence of any such event.
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"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having an aggregate Liquidation Amount equal to the
aggregate principal amount of Debentures to be contemporaneously redeemed in
accordance with the Indenture and the proceeds of which shall be used to pay the
Redemption Price of such Trust Securities; and (b) with respect to a
distribution of Debentures to Holders of Trust Securities in connection with a
termination 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. Each Debenture distributed pursuant to clause
(b) above shall carry with it accrued interest in an amount equal to the accrued
and unpaid interest then due on such Debentures.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Officers' Certificate" means a certificate signed by the President or
an Executive Vice President and by the Chief Financial Officer or the Treasurer
or the Clerk, of the Sponsor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Sponsor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means an opinion in writing of independent,
outside legal counsel for the Trust, the Property Trustee, the Delaware Trustee
or the Sponsor, who shall be reasonably acceptable to the Property Trustee.
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"Original Trust Agreement" has the meaning specified in the Recitals to
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore executed
and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities; PROVIDED that, if
such Preferred Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid for in exchange for, or
in lieu of, which other Preferred Securities have been executed and delivered
pursuant to Sections 5.4, 5.5 and 5.11; PROVIDED, HOWEVER, that in determining
whether the Holders of the requisite Liquidation Amount of the Outstanding
Preferred Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Preferred Securities owned by the
Sponsor, any Trustee or any Affiliate of the Sponsor or any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded; and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Sponsor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and the pledgee is not the Sponsor or any
other Obligor upon the Preferred Securities or a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Sponsor or any Affiliate of the Sponsor.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9 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 trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures shall be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust
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Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Preferred Securities Certificate", means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as EXHIBIT
C.
"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 and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; PROVIDED that each Debenture Redemption Date and the stated maturity
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date 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.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is or Trust Securities are registered in the Securities Register; any
such Person is a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Sponsor" has the meaning specified in the Preamble to this Trust
Agreement.
"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 Declaration of Trust,
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
amended, 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, as
amended, 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; and (c) all proceeds and rights in respect of
the foregoing and any other
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property and assets for the time being held or deemed to be held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as
of April 8, 2002, among the Trust, the Sponsor and the Underwriter named
therein.
ARTICLE II
ESTABLISHMENT OF THE TRUST
2.1 NAME.
The Trust continued hereby shall be known as "Independent Capital
Trust IV," as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may engage in
the transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The address of the Delaware Trustee in the State of Delaware is c/o The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attn: Corporate Trust Department, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Sponsor. The principal executive office of the Trust
is c/o The Bank of New York, 101 Barclay Street, New York, New York 10286.
2.3 ORGANIZATIONAL EXPENSES.
The Sponsor 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 Sponsor shall make no claim
upon the Trust Property for the payment of such expenses.
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2.4 ISSUANCE OF THE PREFERRED SECURITIES.
The Sponsor and an Administrative Trustee, on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver in accordance with the
Underwriting Agreement, Preferred Securities Certificates, registered in the
name of Persons entitled thereto in an aggregate amount of 1,000,000 Preferred
Securities having an aggregate Liquidation Amount of $25,000,000 against receipt
of the aggregate purchase price for such Preferred Securities of $25,000,000
which amount such Administrative Trustee shall promptly deliver to the Property
Trustee.
2.5 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE OF
DEBENTURES.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Sponsor, a Common Securities
Certificate, registered in the name of the Sponsor, in an aggregate amount of
Common Securities having an aggregate Liquidation Amount of $773,200 against
payment by the Sponsor of such amount. Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Sponsor Debentures, registered in the name of the Property Trustee on
behalf of the Trust and having an aggregate principal amount equal to $773,200,
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Sponsor the sum of
$773,200.
2.6 DECLARATION OF TRUST.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures; and (b) to engage in those activities necessary, advisable or
incidental thereto. The Sponsor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it shall hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section 2.7 and Article VIII,
and in accordance with
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the following provisions (i) and (ii), the Administrative Trustees
shall have the authority to enter into all transactions and
agreements determined by the Administrative Trustees to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Administrative Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee, acting
singly or jointly, shall have the power and authority to act on
behalf of the Trust with respect to the following matters:
(A) issuance and sale of the Trust Securities and the
compliance with the Underwriting Agreement in connection
therewith;
(B) causing the Trust to enter into, and execute, deliver and
perform on behalf of the Trust, the Underwriting Agreement,
and such other agreements or documents as may be necessary
or desirable in connection with the purposes and function
of the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under
State securities "blue sky" laws, including the
execution of a registration statement and the
qualification of this Trust Agreement as a trust indenture
under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
The Nasdaq National Market or such securities exchange or
exchanges as shall be determined by the Sponsor, the
registration of the Preferred Securities under the Exchange
Act, compliance with the listing requirements of The Nasdaq
National Market or the applicable securities exchanges and
preparation and filing of all periodic and other reports
and other documents pursuant to the foregoing;
(E) sending of notices (other than notices of default) and
other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this
Trust Agreement;
(F) appointment of a Paying Agent, Authenticating Agent and
Securities Registrar in accordance with this Trust
Agreement;
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(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) taking all action that may be necessary or appropriate for
the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory
business trust under the laws of the State of Delaware and
of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders
of the Preferred Securities or to enable the Trust to
effect the purposes for which the Trust was created; and
(I) taking any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on
any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(D) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the
terms of this Trust Agreement;
(E) the exercise of all of the rights, powers and privileges of
a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
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(H) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust;
(I) after an Event of Default, 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);
(J) registering transfers of the Trust Securities in accordance
with this Trust Agreement; and
(K) except as otherwise provided in this Section 2.7(a)(ii),
the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrative
Trustees set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Trustees shall
not (i) acquire any investments or engage in any activities not
authorized by this Trust Agreement; (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any of
the Trust Property or interests therein, including to
Securityholders, or acquire any assets, in each case, except as
expressly provided herein; (iii) take any action that would cause
the Trust to 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 Preferred Securities,
the Sponsor 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 Sponsor in furtherance of
the following prior to the date of this Trust Agreement are hereby
ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and
the execution of a registration statement on
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the appropriate form in relation to the Preferred Securities,
the Debentures, and the Guarantee, including any amendments
thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or, register for sale all or part of the
Preferred Securities and 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 Sponsor deems necessary or advisable in order
to comply with the applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to The Nasdaq National
Market or a national stock exchange or other organizations for
listing upon notice of issuance of any Preferred Securities and
to file or cause an Administrative Trustee to file thereafter
with such exchange or organization such notifications and
documents as may be necessary from time to time;
(iv) the preparation for filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act, including any amendments thereto; and
(v) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Trustees are
authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust shall not be deemed to be an
"investment company" required to be registered under the Investment
Company Act, shall be classified as a "grantor trust" and not as an
association taxable as a corporation for United States federal
income tax purposes and so that the Debentures shall be treated as
indebtedness of the Sponsor for United States federal income tax
purposes. In this connection, subject to Section 10.2, the
Sponsor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law or this Trust
Agreement, that each of the Sponsor and the Trustees determines
in their discretion to be necessary or desirable for such purposes.
2.8 ASSETS OF TRUST.
The assets of the Trust shall consist of the Trust Property.
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2.9 TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders in accordance with
this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
3.1 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 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
4.1 DISTRIBUTIONS.
(a) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from April 12, 2002, and, except during any Extended
Interest Payment Period with respect to the Debentures, shall be
payable quarterly in arrears on the last calendar day of March,
June, September and December of each year, commencing on June 30,
2002. If any date on which a Distribution is otherwise payable on
the Trust Securities is not a Business Day, then the payment of
such Distribution shall be made on the next succeeding day that is
a Business Day (and without any interest or other
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payment in respect of any such delay) except that, if such Business
Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (and without any
reduction of interest or any other payment in respect of any such
acceleration), in each case with the same force and effect as if
made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property. Distributions on the Trust Securities shall be
payable at a rate of 8.375% per annum of the Liquidation Amount of
the Trust Securities. The amount of Distributions payable for any
full period shall be computed on the basis of a 360-day year of
twelve 30-day months. The amount of Distributions for any partial
period shall be computed on the basis of the number of days elapsed
in a 360-day year of twelve 30-day months. During any Extended
Interest Payment Period with respect to the Debentures,
Distributions on the Preferred Securities shall be deferred for a
period equal to the Extended Interest Payment Period. The amount of
Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee solely from the Payment Account and shall be payable on
each Distribution Date only to the extent that the Trust has funds
on hand and immediately available by 12:30 p.m. on each
Distribution Date in the Payment Account for the payment of such
Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date, which shall be the 15th day of March, June,
September or December for Distributions payable on the last
calendar day of the respective month; provided, however, that for
any Trust Securities held in global form, Distributions shall be
payable to the Holder thereof as of one Business Day immediately
preceding the Distribution Date.
4.2 REDEMPTION.
(a) On each Debenture Redemption Date and on the maturity of the
Debentures, the Trust shall 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 Securities Register. The
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Property Trustee shall have no responsibility for the accuracy of
any CUSIP number contained in such notice. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed;
(v) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Trust Security to be redeemed
and that Distributions thereon shall cease to accumulate on and
after said date, except as provided in Section 4.2(d); and
(vi) the place or places at which 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
immediately available funds then on hand and 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 Preferred Securities, then, by 12:00 noon, New York City time,
on the Redemption Date, the Property Trustee, subject to Section
4.2(c), shall, with respect to Preferred Securities held in global
form, deposit with the Clearing Agency for such Preferred
Securities, to the extent available therefor, funds sufficient to
pay the applicable Redemption Price and will give such Clearing
Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities. With respect to
Trust Securities that are not held in global form, the Property
Trustee, subject to Section 4.2(c), shall deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and
shall give the Paying Agent irrevocable instructions and authority
to pay the Redemption Price to the record holders thereof upon
surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to
the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust
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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, (i) all rights of Securityholders holding Trust Securities
so called for redemption shall cease, except the right of such
Securityholders to receive the Redemption Price, but without
interest and (ii) such Trust Securities shall cease to be
Outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day (and
without any reduction of interest or any other payment in respect
of any such acceleration), 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 Sponsor pursuant to the Guarantee,
Distributions on such Trust Securities shall continue to
accumulate, at the then applicable rate, 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 shall be the date fixed for redemption for
purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust 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 15 days prior to the relevant Redemption
Date.
(f) Subject to Section 4.3(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
shall be allocated on a pro rata basis (based on Liquidation
Amounts) among the Common Securities and the Preferred Securities.
The particular Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not
previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for
redemption of portions (equal to such Liquidation Amount or an
integral multiple of such Liquidation Amount in excess thereof) of
the Liquidation Amount of Preferred Securities of a denomination
larger than such Liquidation Amount; PROVIDED, HOWEVER, in the
event the redemption relates only to Preferred Securities purchased
and held by the Sponsor being redeemed in exchange for a Like
Amount of Debentures, the Property Trustee shall select those
particular Preferred Securities for redemption. The Property
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Trustee shall promptly notify the Securities Registrar in writing
of the Preferred Securities selected for redemption and, in the
case of any Preferred Securities selected for partial redemption,
the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall
relate, in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
4.3 SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities,
as applicable, shall be made, subject to Section 4.2(f), pro rata
among the Common Securities and the Preferred Securities based on
the Liquidation Amount of the Trust Securities; PROVIDED, HOWEVER,
that if on any Distribution Date or Redemption 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, 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 Preferred Securities for all
Distribution periods terminating on or prior thereto, or in the
case of payment of the Redemption Price the full amount of such
Redemption Price on all Outstanding Preferred Securities then
called for redemption, shall have been made or provided for, and
all funds immediately available to the Property Trustee shall first
be applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or the Redemption
Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of Common Securities
shall be deemed to have waived any right to act with respect to any
such Event of Default under this Trust Agreement until the effect
of all such Events of Default with respect to the Preferred
Securities shall have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with
respect to the Preferred Securities shall have been so cured,
waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the Holders of the Preferred Securities and not
the Holder of the Common Securities, and only the Holders of the
Preferred Securities shall have the right to direct the Property
Trustee to act on their behalf.
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4.4 PAYMENT PROCEDURES.
Payments of Distributions (including Additional Amounts, if applicable)
in respect of the Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Preferred Securities are held by a Clearing
Agency, such Distributions shall be made to the Clearing Agency in immediately
available funds, which will credit the relevant accounts 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
Common Securityholder.
4.5 TAX RETURNS AND REPORTS.
The Administrative Trustees shall prepare (or cause to be prepared), at
the Sponsor's expense, and file all United States federal, State and local tax
and information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
forms 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 appropriate Internal Revenue Service forms required to
be furnished to such Securityholder or the information required to be provided
on such form. The Administrative Trustees shall provide the Sponsor with a
copy of all such returns and reports promptly after such filing or furnishing.
The Property Trustee 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.
4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.
Upon receipt under the Debentures of Additional Interest, the Property
Trustee, at the direction of an Administrative Trustee or the Sponsor, 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.
4.7 PAYMENTS UNDER INDENTURE.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received under the Indenture pursuant to Section 5.13(b) or (c) hereof.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
5.1 INITIAL OWNERSHIP.
Upon the creation of the Trust and the contribution by the Sponsor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Sponsor shall
be the sole beneficial owner of the Trust.
5.2 THE TRUST SECURITIES CERTIFICATES.
The Preferred Securities Certificates shall be issued in minimum
denominations of the Liquidation Amount and integral multiples of the
Liquidation Amount in excess thereof, and the Common Securities Certificates
shall be issued in denominations of the Liquidation Amount and multiples thereof
(which may, in the case of the Common Securities, include fractional amounts).
The Trust Securities Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.4, 5.11 and 5.13.
5.3 EXECUTION, AUTHENTICATION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES.
(a) On the Closing Date, the Administrative Trustees shall cause
Trust Securities Certificates, in an aggregate Liquidation
Amount as provided in Sections 2.4 and 2.5, to be executed on
behalf of the Trust by at least one of the Administrative
Trustees and delivered to or upon the written order of the
Sponsor, signed by its Chief Executive Officer, President,
any Vice President or its Treasurer without further corporate
action by the Sponsor, in authorized denominations.
(b) A Preferred Securities Certificate shall not be valid until
authenticated by the manual signature of an authorized
signatory of the Property Trustee in substantially the form of
EXHIBIT D attached hereto. The signature shall be conclusive
evidence that the Preferred Securities Certificate has been
authenticated under this Trust Agreement. Each Preferred
Security Certificate shall be dated the date of its
authentication.
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Upon the written order of the Trust signed by one of the Administrative
Trustees, the Property Trustee shall authenticate and make available for
delivery the Preferred Securities Certificates.
The Property Trustee may appoint an Authenticating Agent acceptable to
the Trust to authenticate the Preferred Securities. An Authenticating Agent may
authenticate the Preferred Securities whenever the Property Trustee may do so.
Each reference in this Trust Agreement to authentication by the Property Trustee
includes authentication by such agent. An Authenticating Agent has the same
rights as the Property Trustee to deal with the Company or the Trust.
5.3A. GLOBAL PREFERRED SECURITY
(a) Any Global Preferred Security issued under this Trust
Agreement shall be registered in the name of the nominee of
the Clearing Agency and delivered to such custodian therefor,
and such Global Preferred Security shall constitute a single
Preferred Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement,
no Global Preferred Security may be exchanged for Preferred
Securities registered in the names of persons other than the
Depositary or its nominee unless (i) the Depositary notifies
the Debenture Trustee that it is unwilling or unable to
continue as a depositary for such Global Preferred Securities
and the Sponsor is unable to locate a qualified successor
depositary, (ii) the Sponsor executes and delivers to the
Debenture Trustee a written order stating that it elects to
terminate the book-entry system through the Depositary or
(iii) there shall have occurred and be continuing a Debenture
Event of Default.
(c) If a Preferred Security is to be exchanged in whole or in
part for a beneficial interest in a Global Preferred
Security, then either (i) such Global Preferred Security
shall be so surrendered for exchange or cancellation as
provided in this Article V or (ii) the Liquidation Amount
thereof shall be reduced or increased by an amount equal to
the portion thereof to be so exchanged or cancelled, or equal
to the Liquidation Amount of such other Preferred Securities
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 Securities Registrar, whereupon the
Property Trustee, in accordance with the rules and procedures
of the Depositary for such Global Preferred Security (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 a Global Preferred Security by the Clearing
Agency, accompanied by registration instructions, the
Administrative Trustees shall execute and the Property
Trustee shall, subject to Section 5.4(b) and as otherwise
provided in this Article V,
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authenticate and deliver any Preferred Securities issuable in
exchange for such Global Preferred 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) Every Preferred Security executed, authenticated and
delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Preferred Security or any portion
thereof, whether pursuant to this Article V or otherwise,
shall be executed, authenticated and delivered in the form
of, and shall be, a Global Preferred Security, unless such
Global Preferred Security is registered in the name of a
Person other than the Clearing Agency for such Global
Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner
of a Global Preferred Security, shall be considered the
Holder of the Preferred Securities represented by such Global
Preferred Security for all purposes under this Trust
Agreement and the Preferred Securities, and owners of
beneficial interests in such Global Preferred Security shall
hold such interests pursuant to the Applicable Procedures
and, except as otherwise provided herein, shall not be
entitled to receive physical delivery of any such Preferred
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 Preferred
Securities 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. Neither the Property
Trustee, the Securities Registrar nor the Sponsor shall
have any liability in respect of any transfers effected by
the Clearing Agency.
(f) The rights of owners of beneficial interests in a Global
Preferred 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.
5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES
CERTIFICATES.
(a) The Sponsor shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a register or
registers for the purpose of registering Trust Securities
Certificates and, subject to the provisions of Section 5.3A,
transfers and exchanges of Preferred Securities Certificates
(herein referred to as the "Securities Register") in which the
registrar designated by the Sponsor (the "Securities
Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates
(subject to Section 5.10 in the case of the Common Securities
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Certificates) and registration of transfers and exchanges of
Preferred Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar.
(b) Subject to the provisions of Section 5.3A, upon surrender for
registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to
Section 5.8, the Administrative Trustees or any one of them
shall execute and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. The Securities Registrar
shall not be required to register the transfer of any Preferred
Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.
(c) Every Preferred Securities Certificate presented or surrendered
for registration of transfer or exchange, subject to the
provisions of Section 5.3A, shall be accompanied by a written
instrument of transfer in form satisfactory to the Property
Trustee and the Securities Registrar duly executed by the
Holder or his, her, or its attorney duly authorized in writing.
Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and
subsequently disposed of by the Property Trustee in accordance
with its customary practice. The Trust shall not be required to
(i) issue, register the transfer of, or exchange any Preferred
Securities during a period beginning at the opening of business
15 calendar days before the date of mailing of a notice of
redemption of any Preferred Securities called for redemption
and ending at the close of business on the day of such mailing;
or (ii) register the transfer of or exchange any Preferred
Securities so selected for redemption, in whole or in part,
except the unredeemed portion of any such Preferred Securities
being redeemed in part.
(d) No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates,
subject to the provisions of Section 5.3A, but the Securities
Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection
with any transfer or exchange of Preferred Securities
Certificates.
(e) Preferred Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in
this Trust Agreement. To the fullest extent permitted by law,
any transfer or
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purported transfer of any Preferred Security not made in
accordance with this Trust Agreement shall be null and void. A
Preferred Security that is not a Global Preferred Security may
be transferred, in whole or in part, to a Person who takes
delivery in the form of another Preferred Security that is not
a Global Preferred Security as provided in Section 5.4(a). A
beneficial interest in a Global Preferred Security may be
exchanged for a Preferred Security that is not a Global
Preferred Security only as provided in Section 5.3A.
5.5 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 make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.5, the Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section 5.5 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.
5.6 PERSONS DEEMED SECURITYHOLDERS.
The Trustees, the Paying Agent and 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.
5.7 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Administrative Trustees or the Sponsor shall furnish
or cause to be furnished to the Property Trustee (a) within five Business Days
of March 15, June 15, September 15 and December 15 of each year, a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Securityholders as of the most recent record date; and (b) promptly after
receipt by any Administrative Trustee or the Sponsor of a request therefor
from the Property Trustee in order to enable the Property Trustee to discharge
its obligations under this Trust Agreement, in each case to the extent such
information is in the possession or control of the Administrative
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Trustees or the Sponsor and is not identical to a previously supplied list or
has not otherwise been received by the Property Trustee in its capacity as
Securities Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities, and the corresponding rights of the Trustee shall be as
provided in the 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 the Sponsor, 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.
5.8 MAINTENANCE OF OFFICE OR AGENCY.
The Administrative Trustees shall maintain, or cause to be maintained,
in The City of New York, or other location designated by the Administrative
Trustees, an office or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative Trustees initially
designate the Corporate Trust Office of the Property Trustee, The Bank of New
York, as the principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Sponsor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.
5.9 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 if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Property Trustee, and any co-paying agent chosen by the
Property Trustee must be acceptable to the Administrative Trustees and the
Sponsor. 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 Sponsor. In the event that the Property Trustee 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 Sponsor 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 shall 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 8.1, 8.3 and 8.6 shall apply to
the Property Trustee also in its role as Paying Agent,
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for so long as the Property Trustee 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.
5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
On the Closing Date, the Sponsor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, any attempted transfer of the Common Securities (other than a transfer
in connection with a merger or consolidation of the Sponsor into another
corporation pursuant to Section 12.1 of the Indenture) shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Sponsor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE TRUST AGREEMENT (AS DEFINED BELOW)."
5.11 TRUST SECURITIES CERTIFICATES.
(a) Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more fully
registered Global Preferred Securities Certificates which will
be deposited with or on behalf of the Clearing Agency and
registered in the name of the Clearing Agency's nominee.
Unless and until it is exchangeable in whole or in part for
the Preferred Securities in definitive form, a global security
may not be transferred except as a whole by the Clearing
Agency to a nominee of the Clearing Agency or by a nominee of
the Clearing Agency to the Clearing Agency or another nominee
of the Clearing Agency or by the Clearing Agency or any such
nominee to a successor of such Clearing Agency or a nominee of
such successor.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Sponsor in the form of a
definitive Common Securities Certificate.
5.12 NOTICES TO CLEARING AGENCY.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Securities Certificate, the Trustees shall
give all such notices and communications specified herein to be given to the
Clearing Agency, and shall have no obligation to provide notice to the owners of
the beneficial interest in the Global Preferred Securities.
5.13 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 2.9, 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
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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 in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights. When
issued and delivered to Holders of the Preferred Securities
against payment of the purchase price therefor, the Preferred
Securities shall be fully paid and nonassessable interests in
the Trust. The Holders of the Preferred Securities, in their
capacities as such, shall be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding,
if, upon a Debenture Event of Default, the Debenture Trustee
fails or the holders of not less than 25% in 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 Preferred
Securities then Outstanding shall have such right by a notice
in writing to the Sponsor 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 shall remain
subordinated to the extent provided in the Indenture.
(c) For so long as any Preferred Securities remain Outstanding,
upon a Debenture Event of Default arising from the failure to
pay interest or principal on the Debentures, the Holders of
any Preferred Securities then Outstanding shall, to the
fullest extent permitted by law, have the right to directly
institute proceedings for enforcement of payment to such
Holders of principal of or interest on the Debentures having a
principal amount equal to the Liquidation Amount of the
Preferred Securities of such Holders.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
6.1 LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section 6.1, in Sections 5.13, 8.10
and 10.2 and in the Indenture and as otherwise required by law,
no record Holder of Preferred Securities shall have any right
to vote or in any manner otherwise control the administration,
operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be
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construed so as to constitute the Securityholders from time
to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee on
behalf of the Trust, the 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 Article VII 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 all Outstanding
Preferred Securities; PROVIDED, HOWEVER, that where a consent
under the Indenture would require the consent of each holder of
outstanding Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior written
consent of each Holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved
by a vote of the Holders of the Outstanding Preferred
Securities, except by a subsequent vote of the Holders of the
Outstanding Preferred Securities. The Property Trustee shall
notify each Holder of the Outstanding Preferred Securities of
any notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Sponsor, obtain an Opinion of
Counsel experienced in such matters to the effect that the
Trust shall continue to be classified as a grantor trust and
not as an association taxable as a corporation for United
States federal income tax purposes on account of such action.
(c) 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 Preferred Securities,
whether by way of amendment to the Trust Agreement or
otherwise; or (ii) the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities
as a class shall be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority
in Liquidation Amount of the Outstanding Preferred Securities.
No amendment to this Trust Agreement may be made if, as a
result of such amendment, the Trust would cease to be
classified as a grantor trust or would be classified as an
association taxable as a corporation for United States federal
income tax purposes.
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6.2 NOTICE OF MEETINGS.
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred 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.
6.3 MEETINGS OF PREFERRED SECURITYHOLDERS.
(a) 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 in respect of which
Preferred Securityholders are entitled to vote upon the written
request of the Preferred Securityholders of 25% of the
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) and the Administrative Trustees or the
Property Trustee may, at any time in their discretion, call a
meeting of Preferred Securityholders to vote on any matters as
to which the Preferred Securityholders are entitled to vote.
(b) Preferred Securityholders of record of 50% of the Outstanding
Preferred Securities (based upon their aggregate Liquidation
Amount), present in person or by proxy, shall constitute a
quorum at any meeting of Securityholders.
(c) If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by
proxy, holding a majority of the Preferred Securities (based
upon their aggregate Liquidation Amount) held by the Preferred
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.
6.4 VOTING RIGHTS.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities (with any fractional
multiple thereof rounded up or down as the case may be to the closest integral
multiple) in respect of any matter as to which such Securityholders are entitled
to vote.
6.5 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
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taken. Only Holders shall be entitled to vote. When Trust Securities are held
jointly by several Persons, any one of them may vote at any meeting in person or
by proxy in respect of such Trust Securities, but if more than one of them shall
be present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and, the burden of proving invalidity shall rest on
the challenger. No proxy shall be valid more than three years after its date of
execution.
6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting and without prior notice if all Securityholders are
provided with a request for written consent and Securityholders holding a
majority of all Outstanding Trust Securities (based upon their aggregate
Liquidation Amount) entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing (based upon their aggregate
Liquidation Amount).
6.7 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.
6.8 ACTS OF SECURITYHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to
an Administrative Trustee. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Trust Agreement and
(subject to Section 8.1) conclusive in favor of the Trustees,
if made in the manner provided in this Section 6.8.
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(b) 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.
(c) The ownership of Preferred Securities shall be proved by the
Securities Register.
(d) 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.
(e) 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.
6.9 INSPECTION OF RECORDS.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection at the principal
executive office of the Trust (as indicated in Section 2.2) by Holders of the
Trust Securities during normal business hours for any purpose reasonably related
to such Holder's interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 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 (in the case of a successor Property
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Trustee, the term "Bank" as used herein shall be deemed to refer to such
successor Property Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Sponsor and the
Securityholders that:
(a) the Bank is duly organized, validly existing and in good
standing under the laws of the State of New York;
(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 Property Trustee and constitutes the valid and
legally binding agreement of the Property Trustee enforceable
against it 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 Property Trustee
of this Trust Agreement have been duly authorized by all
necessary corporate or other action on the part of the Property
Trustee and do not require any approval of stockholders of the
Bank and such execution, delivery and performance shall not (i)
violate the Bank's charter or by-laws; (ii) violate any
provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition
of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which
the Property Trustee or the Bank is a party or by which it is
bound; or (iii) violate any law, governmental rule or
regulation of the United States or the State of New York, as
the case may be, governing the banking or trust powers of the
Bank or the Property Trustee (as appropriate in context) 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 Property Trustee contemplated
herein or therein requires 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, as the case
may be, under the laws of the United States or the State of New
York;
(f) there are no proceedings pending or, to the best of the
Property Trustee's knowledge, threatened against or affecting
the Bank or the Property
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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
Property Trustee to enter into or perform its obligations as
one of the Trustees under this Trust Agreement; and
(g) the Property Trustee is a Person eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000.
7.2 REPRESENTATIONS AND WARRANTIES OF THE DELAWARE BANK AND THE
DELAWARE TRUSTEE.
The Delaware Bank and the Delaware Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each successor Delaware Trustee at
the time of the successor Delaware Trustee's acceptance of appointment as
Delaware Trustee hereunder (the term "Delaware Bank" being used to refer to such
successor Delaware Trustee in its separate corporate capacity), hereby
represents and warrants (as applicable) for the benefit of the Sponsor and the
Securityholders that:
(a) the Delaware Bank is duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) the Delaware 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 Delaware Trustee and constitutes the valid and
legally binding agreement of the Delaware Trustee enforceable
against it 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 Delaware Trustee
of this Trust Agreement have been duly authorized by all
necessary corporate or other action on the part of the Delaware
Trustee and do not require any approval of stockholders of the
Delaware Bank and such execution, delivery and performance
shall not (i) violate the Delaware 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 Delaware Bank or the
Delaware Trustee is a party or by which it is bound; or (iii)
violate any law, governmental rule or regulation of the United
States or the State of
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Delaware, as the case may be, governing the banking or trust
powers of the Delaware Bank or the Delaware Trustee (as
appropriate in context) or any order, judgment or decree
applicable to the Delaware Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation
of any of the transactions by the Delaware Trustee contemplated
herein or therein requires 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 Delaware Bank or the Delaware Trustee, as
the case may be, under the laws of the United States or the
State of Delaware; and
(f) there are no proceedings pending or, to the best of the
Delaware Trustee's knowledge, threatened against or affecting
the Delaware Bank or the Delaware Trustee in any court or
before any governmental authority, agency or arbitration board
or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the
right, power and authority of the Delaware Trustee to enter
into or perform its obligations as one of the Trustees under
this Trust Agreement.
7.3 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Sponsor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date,
on behalf of the Trust have been duly authorized and, shall
have been, duly and validly executed, issued and delivered by
the Administrative Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this
Trust Agreement and the Securityholders shall be, as of such
date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Trust (or the Trustees on behalf of the Trust) in
connection with the execution, delivery and performance by the
Bank, the Property Trustee or the Delaware Trustee, as the case
may be, of this Trust Agreement.
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ARTICLE VIII
TRUSTEES
8.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the
Property Trustee, by the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Trust Agreement shall
require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable grounds
for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured to it. No Administrative Trustee nor the Delaware
Trustee shall be liable for its act or omissions hereunder
except as a result of its own gross negligence or willful
misconduct. The Property Trustee's liability shall be
determined under the Trust Indenture Act. 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 8.1. To the extent that, at law or
in equity, the Delaware Trustee or an Administrative Trustee
has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, the
Delaware Trustee or such Administrative Trustee shall not be
liable to the Trust or to any Securityholder 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 Delaware Trustee or
the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Sponsor and the Securityholders to
replace such other duties and liabilities of the Delaware
Trustee or the Administrative Trustees, as the case may be.
(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 with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security,
agrees that it shall 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 8.1(b) does not
limit the liability of the Trustees expressly set forth
elsewhere in this Trust
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Agreement or, in the case of the Property Trustee, in the
Trust Indenture Act.
(c) 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 Trust
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 Sponsor and 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 3.1 and except to the
extent otherwise required by law; and
(d) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the negligence,
default or misconduct of the Administrative Trustees or the
Sponsor.
8.2 CERTAIN NOTICES.
(a) Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent
provided in Section 10.8, notice of such Event of Default to
the Securityholders, the Administrative
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Trustees and the Sponsor, unless such Event of Default shall
have been cured or waived. For purposes of this Section 8.2 the
term "Event of Default" means any event that is, or after
notice or lapse of time or both would become, an Event of
Default.
(b) The Administrative Trustees shall transmit, to the
Securityholders in the manner and to the extent provided in
Section 10.8, notice of the Sponsor's election to begin or
further extend an Extended Interest Payment Period on the
Debentures (unless such election shall have been revoked) and
of any election by the Sponsor to accelerate the Maturity
Date of the Debentures, as defined in the Indenture, within the
time specified for transmitting such notice to the holders of
the Debentures pursuant to the Indenture as originally
executed.
8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(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
of this Trust Agreement, the Property Trustee finds the same
ambiguous or inconsistent with 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 Preferred
Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice to
the Sponsor requesting written instructions of the Sponsor
as to the course of action to be taken and 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 Sponsor; PROVIDED, HOWEVER,
that if the Property Trustee does not receive such instructions
of the Sponsor within 10 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 2 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
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which event the Property Trustee shall have no liability except
for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' 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 conclusively rely upon an
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor 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, any filing under tax
or securities laws or any filing under tax or securities laws)
or any rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its choice
(which counsel may be counsel to the Sponsor or any of its
Affiliates) and the 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 and, in accordance with such advice, such
counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees; 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; nothing contained herein shall,
however, relieve the Property Trustee of the obligation, upon
the occurrence of any Event of Default (that has not been cured
or waived) to exercise such of the rights and powers vested in
it by this Trust Agreement, and to use the same degree of care
and skill in their exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
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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, and the Property Trustee
shall not be liable for the default or misconduct of such other
agents or attorneys; provided that the Property Trustee shall
be responsible for its own negligence or recklessness 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
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.
8.4 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 Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Sponsor of the proceeds of the Debentures.
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8.5 MAY HOLD SECURITIES.
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 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
8.6 COMPENSATION; INDEMNITY; FEES.
The Sponsor agrees:
(a) to pay to the Trustees from time to time compensation for all
services rendered by them hereunder (which compensation shall
not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), in the case of
the Property Trustee, as set forth in a written agreement
between the Sponsor and the Property Trustee;
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to such
Trustee's negligence, bad faith or willful misconduct (or, in
the case of the Administrative Trustees or the Delaware
Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or
willful misconduct); and
(c) to indemnify each of the Trustees or any predecessor Trustee
for, and to hold the Trustees harmless against, any loss,
damage, claims, liability, penalty or expense of any kind or
nature whatsoever, 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 for (or,
in the case of the Administrative Trustees or the Delaware
Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or
willful misconduct).
No Trustee may claim any Lien or charge on Trust Property as a result
of any amount due and unpaid pursuant to this Section 8.6.
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8.7 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 eligible pursuant to the Trust Indenture Act
to act as such 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 8.7, 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 8.7, it shall
resign immediately in the manner and with the effect
hereinafter specified in this Article VIII. The Property
Trustee and the Delaware Trustee may be the same Person.
(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 Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i)
a natural person who is at least 21 years of age and a resident
of the State of Delaware; or (ii) a legal entity with its
principal place of business in the State of Delaware and that
otherwise meets the requirements of applicable Delaware law
that shall act through one or more persons authorized to bind
such entity.
8.8 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 provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
8.9 CO-TRUSTEES AND SEPARATE TRUSTEE.
(a) Unless a Debenture 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 Sponsor shall have power to appoint, and
upon the written request of the Property Trustee, the Sponsor
shall for such purpose join with the Property Trustee in the
execution, delivery and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons
approved
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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 Section 8.9. If the
Sponsor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case a
Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed
pursuant to this Section 8.9 shall either be (i) a natural
person who is at least 21 years of age and a resident of the
United States; or (ii) a legal entity with its principal place
of business in the United States that shall act through one or
more persons authorized to bind such entity.
(b) Should any written instrument from the Sponsor 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 Sponsor.
(c) 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:
(i) The Trust Securities shall be executed and delivered and
all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other
personal property held by, or required to be deposited or
pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such
co-trustee or separate trustee.
(ii) 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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(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Sponsor, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section
8.9, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have the
power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of
the Sponsor. Upon the written request of the Property
Trustee, the Sponsor 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 8.9.
(iv) 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.
(v) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee
and separate trustee.
8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to
this Article VIII shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the
applicable requirements of Section 8.11.
(b) 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 the
successor 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 Relevant Trustee may
petition, at the expense of the Sponsor, any court of
competent jurisdiction for the appointment of a successor
Relevant Trustee with respect to the Trust Securities.
(c) Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee 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 or
the Delaware Trustee,
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or both of them, may be removed at such time by Act of the
Holders of a majority in Liquidation Amount of the Preferred
Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Common
Securityholder at any time.
(d) If any Trustee shall resign, be removed or become incapable of
acting as 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 Trustee, shall promptly appoint a successor
Trustee or Trustees with respect to the Trust Securities and
the Trust, and the successor Trustee shall comply with the
applicable requirements of Section 8.11. If the Property
Trustee or the Delaware Trustee shall resign, be removed or
become incapable of continuing to act as the Property Trustee
or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and is
continuing, the Preferred Securityholders, by Act of the
Securityholders of a majority in Liquidation Amount of the
Preferred Securities then Outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees with respect to the Trust Securities and
the Trust, and 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 acting
as Administrative Trustee, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Common
Securityholder, by Act of the Common Securityholder delivered
to an Administrative Trustee, shall promptly appoint a
successor Administrative Trustee or Administrative Trustees
with respect to the Trust Securities and the Trust, and such
successor Administrative Trustee or Administrative Trustees
shall comply with the applicable requirements of Section 8.11.
If no successor Relevant Trustee with respect to the Trust
Securities shall have been so appointed by the Common
Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust
Securities on behalf of himself and all others similarly
situated may petition a court of competent jurisdiction for the
appointment Trustee with respect to the Trust Securities.
(e) The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor
Trustee to all Securityholders in the manner provided in
Section 10.8 and shall give notice to the Sponsor. Each
notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust office if it is the
Property Trustee.
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(f) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a
Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Sponsor, 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; or (b) otherwise by
the Sponsor (with the successor in each case being a Person
who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 8.7).
8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust,
the retiring Relevant Trustee (if requested by the Sponsor)
and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an instrument hereto
wherein each successor Relevant Trustee shall accept such
appointment and which 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 upon
the execution and delivery of such instrument the resignation
or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Relevant Trustee with
respect to the Trust Securities and the Trust; 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.
(b) 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
immediately preceding paragraph, as the case may be.
(c) No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant
Trustee shall be qualified and eligible under this Article
VIII.
8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee may be merged or converted or with which it may be
consolidated, or any Person
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resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided such Person shall be
otherwise qualified and eligible under this Article VIII, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto.
8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST.
If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor of the Sponsor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Sponsor or Trust (or any such
other obligor).
8.14 REPORTS BY PROPERTY TRUSTEE.
(a) On or before July 31 of each year, commencing July 31, 2002,
the Property Trustee shall transmit to the Securityholders
such reports concerning the Property Trustee, its actions
under this Trust Agreement and the property and funds in its
possession in its capacity as the Property Trustee as may be
required pursuant to the Trust Indenture Act in the manner
provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with
The Nasdaq National Market, and each national securities
exchange or other organization upon which the Trust Securities
are listed, and also with the Commission and the Sponsor.
8.15 REPORTS TO THE PROPERTY TRUSTEE.
The Sponsor 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(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
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8.17 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be five, provided that the Holder
of all of the Common Securities by written instrument may
increase or decrease the number of Administrative Trustees.
The Property Trustee and the Delaware Trustee may be the same
Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The
vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in
the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative
Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrative Trustees and
shall discharge all the duties imposed upon the Administrative
Trustees by this Trust Agreement.
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 2.7(a); and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Sponsor 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.
-49-
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, LIQUIDATION AND MERGER
9.1 TERMINATION UPON EXPIRATION DATE.
Unless earlier dissolved, the Trust shall automatically dissolve on
April 30, 2032 (the "Expiration Date"), subject to distribution of the Trust
Property in accordance with Section 9.4.
9.2 EARLY TERMINATION.
The first to occur of any of the following events is an "Early
Termination Event" upon the occurrence of which the Trust shall dissolve:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Sponsor;
(b) delivery of written direction to the Property Trustee by the
Sponsor (which direction is wholly optional and within the
discretion of the Sponsor, subject to Sponsor having
received prior approval of the Board of Governors of the
Federal Reserve System if so required under applicable
guidelines, policies or regulations thereof) to dissolve the
Trust and distribute the Debentures to Securityholders in
exchange for the Preferred Securities in accordance with
Section 9.4;
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Debentures
(whether upon a Debenture Redemption Date or the maturity of
the Debenture); or
(d) an order for dissolution of the Trust shall have been entered
by a court of competent jurisdiction.
9.3 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 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, 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
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to the Trust or the Securityholders; and (d) the filing of a Certificate of
Cancellation by an Administrative Trustee under the Delaware Business Trust Act.
9.4 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b), or
(d) of Section 9.2 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 9.4(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 shall no longer be deemed to be Outstanding
and any Trust Securities Certificates not surrendered for
exchange shall 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 9.4(d) applies, receive a
Liquidation Distribution, as the Administrative Trustees
or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(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 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities shall no longer be
deemed to be outstanding; (ii) certificates representing a Like
Amount of Debentures shall be issued to Holders of Trust
Securities Certificates upon surrender of such certificates to
the Administrative Trustees or their agent for exchange; (iii)
the Sponsor shall use its reasonable efforts to have the
Debentures listed on the Nasdaq National Market or on such
other securities exchange or other organization as the
Preferred Securities are then listed or traded;
-51-
(iv) any Trust Securities Certificates not so surrendered
for exchange shall be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in
the Debentures from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates
until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or
principal shall be made to Holders of Trust Securities
Certificates with respect to such Debentures); and (v) all
rights of Securityholders holding Trust Securities shall
cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution
entered by a court of competent jurisdiction or otherwise,
distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, the
Trust Property shall be liquidated, and the Trust shall be
wound-up by the Property Trustee in such manner as the Property
Trustee determines. In such event, on the date of the winding
up of the Trust, Securityholders shall be entitled to receive
out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, 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 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 shall
be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that,
if a Debenture Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common
Securities.
9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE
TRUST.
The Trust may not merge with or into, consolidate, amalgamate, 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 9.5. At the request of the Sponsor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may merge
with or into, consolidate, amalgamate, 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 Preferred Securities; or (b) substitutes for the Preferred
Securities other securities
-52-
having substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to distributions and payments upon
liquidation, redemption and otherwise; (ii) the Sponsor expressly appoints a
trustee of such successor entity possessing substantially the same powers and
duties as the Property Trustee as the holder of the Debentures; (iii) the
Successor Securities are listed or traded, or any Successor Securities shall be
listed or traded upon notification of issuance, on any national securities
exchange or other organization on which the Preferred Securities are then
listed, if any; (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect; (v) such successor entity has a
purpose substantially identical to that of the Trust; (vi) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Sponsor has received an Opinion of Counsel 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
Preferred 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 shall be required to register as an "investment company" under the
Investment Company Act; and (vii) the Sponsor 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, the Debentures, and this Trust Agreement. For purposes of this
Section 9.5, any such consolidation, merger, sale, conveyance, transfer or other
disposition as a result of which (a) the Company is not the surviving Person,
and (b) the same Person is not both (i) the primary obligor in respect of the
Debentures and (ii) the Guarantor under that certain Preferred Securities
Guarantee Agreement of even date herewith (the "Guarantee") between the Company
and The Bank of New York, shall be deemed to constitute a replacement of the
Trust by a successor entity; provided further that, notwithstanding the
foregoing, in the event that upon the consummation of such a consolidation,
merger, sale, conveyance, transfer or other disposition, the parent company (if
any) of the Company, or its successor, is a bank holding company or financial
holding company or comparably regulated financial institution, such parent
company shall guarantee the obligations of the Trust (and any successor thereto)
under the Preferred Securities (including any Successor Securities) at least to
the extent provided by the Guarantee, the Debentures, and the Trust Agreement.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
holders of 100% in Liquidation Amount of the Preferred 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 Person or
permit any other Person to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other than a grantor
trust for United States federal income tax purposes.
-53-
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 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.
10.2 AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Sponsor, without the consent of any
Securityholders, (i) as provided in Section 8.11 with respect
to acceptance of appointment by a successor Trustee; (ii) to
cure any ambiguity, correct or supplement any provision herein
or therein which may be inconsistent with any other provision
herein or therein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement,
that shall not be 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 shall 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 shall not be required to register as an
"investment company" under the Investment Company Act; or (iv)
to reduce or increase the Liquidation Amount per Trust Security
and simultaneously to correspondingly increase or decrease the
number of Trust Securities issued and Outstanding solely for
the purpose of maintaining the eligibility of the Preferred
Securities for quotation or listing on any national securities
exchange or other organization on which the Preferred
Securities are then quoted or listed (including, if applicable,
the Nasdaq National Market); PROVIDED, HOWEVER, that in the
case of clause (ii), such action shall not adversely affect in
any material respect the interests of any Securityholder, and
provided further, that in the case of clause (iv) the aggregate
Liquidation Amount of the Trust Securities Outstanding upon
completion of any such reduction must be the same as the
aggregate Liquidation Amount of the Trust Securities
Outstanding immediately prior to such reduction or increase;
and any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders
(or in the case of an amendment pursuant to clause (iv), as of
the date specified in the notice).
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(b) Except as provided in Section 6.1(c) or Section 10.2(c) hereof,
any provision of this Trust Agreement may be amended by the
Trustees and the Sponsor (i) with the consent of Trust
Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then
Outstanding; and (ii) upon 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 shall not affect the Trust's status as a
grantor trust for United States federal income tax purposes or
the Trust's exemption from status of an "investment company"
under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected
Securityholder, this Trust Agreement may not be amended to (i)
change the amount or timing of any Distribution on the Trust
Securities or otherwise 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 this paragraph (c) of this Section 10.2 may not
be amended.
(d) Notwithstanding any other provisions of this Trust Agreement,
no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to
qualify for the exemption from status of an "investment
company" under the Investment Company Act or to fail or cease
to be classified 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 Sponsor, this Trust
Agreement may not be amended in a manner which imposes any
additional obligation on the Sponsor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the
Sponsor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall 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 Officers' Certificate
stating that any amendment to this Trust Agreement has been
effected in compliance with this Trust Agreement.
-55-
10.3 SEVERABILITY.
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.
10.4 GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
THEREOF).
10.5 PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day
that 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 that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day (and without any reduction of
interest or any other payment in respect of any such acceleration), in each case
with the same force and effect as though made on the date fixed for such
payment, and no distribution shall accumulate thereon for the period after such
date.
10.6 SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Sponsor, the Trust or the Relevant Trustee(s),
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Sponsor that is permitted under
Article XII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Sponsor's obligations hereunder, the Sponsor shall
not assign its obligations hereunder.
10.7 HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
10.8 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 Sponsor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred 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 Sponsor, to Independent Bank
Corp., 288 Union Street, Rockland,
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Massachusetts 02370, Attention: Chief Financial Officer, facsimile no:(781)
982-6591. Any notice to Preferred Securityholders shall also be given to such
owners as have, within two years preceding the giving of such notice, filed
their names and addresses with the Property Trustee for that purpose. 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 and the Administrative Trustees to The
Bank of New York, 101 Barclay Street, New York, New York 10286, Attention
either: Corporate Trust Trustee Administration for the Property Trustee or
Administrative Trustees of Independent Capital Trust IV; and (b) with respect
to the Delaware Trustee, to The Bank of New York (Delaware), 23 White Clay
Center, Route 273, Newark, Delaware 19711, Attention: Corporate Trust
Department. Such notice, demand or other communication to or upon the Trust or
the Property Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or the Property Trustee.
10.9 AGREEMENT NOT TO PETITION.
Each of the Trustees and the Sponsor 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, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code of 1978, as amended) (collectively, "Bankruptcy Laws") or
otherwise join in the commencement of any proceeding against the Trust under any
Bankruptcy Law. In the event the Sponsor or any of the Trustees takes action
in violation of this Section 10.9, the Property Trustee agrees, for the benefit
of Securityholders, that at the expense of the Sponsor (which expense shall be
paid prior to the filing), it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Sponsor or such
Trustee against the Trust or the commencement of such action and raise the
defense that the Sponsor or such Trustee has agreed in writing not to take
such action and should be stopped and precluded therefrom. The provisions of
this Section 10.9 shall survive the termination of this Trust Agreement.
10.10 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Trust Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
-57-
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in
this Trust Agreement by any of the provisions of the Trust
Indenture Act, such required provision shall control. 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 to be 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 Trust Securities
as equity securities representing undivided beneficial
interests in the assets of the Trust.
10.11 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND INDENTURE.
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 ALL OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
10.12 COUNTERPARTS.
This Trust Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, and all of
which counterparts together shall constitute one and the same agreement.
10.13 EXCHANGE ACT OBLIGATIONS.
For so long as the Trust Securities shall remain outstanding, Sponsor
shall fulfill all reporting and filing obligations under the Securities Exchange
Act of 1934, as amended, as applicable to companies having a class of securities
registered under Section 12(b) or 12(g) thereunder.
[SIGNATURE PAGE FOLLOWS]
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INDEPENDENT BANK CORP.
By: /s/ Denis K. Sheahan
------------------------------
Name: Denis K. Sheahan
Title: Chief Financial Officer and Treasurer
THE BANK OF NEW YORK, AS
PROPERTY TRUSTEE
By: /s/ Kisha Holder
-----------------------------
Name: Kisha Holder
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE), AS
DELAWARE TRUSTEE
By: /s/ Michael Santino
-----------------------------
Name: Michael Santino
Title: Senior Vice President
/s/ Edward H. Seksay
- --------------------------------
Edward H. Seksay,
as Administrative Trustee
/s/ Anthony W. DiRobbio
- --------------------------------
Anthony W. DiRobbio,
as Administrative Trustee
/s/ Denis K. Sheahan
- --------------------------------
Denis K. Sheahan,
as Administrative Trustee
-59-
EXHIBIT A
CERTIFICATE OF TRUST
OF
INDEPENDENT CAPITAL TRUST IV
This Certificate of Trust is being executed as of March 18, 2002 for
the purposes of organizing a business trust pursuant to the Delaware Business
Trust Act, 12 Del. C.ss.ss.3801 et seq. (the "Act").
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "Independent Capital Trust IV"
(the "Trust").
2. Delaware Trustee. The name and business address of the Delaware trustee
of the Trust meeting the requirements of Section 3807 of the Act are as
follows:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
3. Effective. This Certificate of Trust shall be effective immediately
upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned being all of the trustees of the
Trust, have duly executed this Certificate of Trust as of the day and year first
above written.
THE BANK OF NEW YORK (DELAWARE), AS
DELAWARE TRUSTEE
By: /s/ William T. Lewis
--------------------------------
Name: William T. Lewis
Title: Senior Vice President
A-1
ADMINISTRATIVE TRUSTEE
/s/ Edward H. Seksay
- --------------------------------------
Name: Edward H. Seksay
ADMINISTRATIVE TRUSTEE
/s/ William E Matteson
- --------------------------------------
Name: William E. Matteson
ADMINISTRATIVE TRUSTEE
/s/ Denis K. Sheahan
- --------------------------------------
Name: Denis K. Sheahan
A-2
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS DESCRIBED IN THE TRUST AGREEMENT AS DEFINED BELOW
CERTIFICATE NUMBER 1 NUMBER OF COMMON SECURITIES 30,928
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
INDEPENDENT CAPITAL TRUST IV
COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
INDEPENDENT CAPITAL TRUST IV, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
INDEPENDENT BANK CORP. (the "Holder") is the registered owner of thirty
thousand, nine hundred and twenty-eight (30,928) common securities of the
Trust representing undivided beneficial interests in the assets of the Trust
and designated the Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). Except as provided in Section 5.10 of
the Trust Agreement (as defined below), the Common Securities are not
transferable, to the fullest extent permitted below, and any attempted
prohibited transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences, and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Declaration of Trust
dated as of April 12, 2002, 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 shall 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.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 12th day of April, 2002.
INDEPENDENT CAPITAL TRUST IV
By:
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Name: Anthony W. DiRobbio
Title: Administrative Trustee
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EXHIBIT C
CERTIFICATE NUMBER 1 NUMBER OF PREFERRED SECURITIES 1,000,000
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
INDEPENDENT CAPITAL TRUST IV
8.375% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
CUSIP NO. 45384 D 200
Independent Capital Trust IV, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co, Inc. (the "Holder") is the registered owner of one million
(1,000,000) preferred securities of the Trust representing undivided
beneficial interests in the assets of the Trust and designated the 8.375%
Cumulative Trust Preferred Securities (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement
(as defined herein). The designations, rights, privileges, restrictions,
preferences, and other terms and provisions of the Preferred Securities are
set forth in, and this Certificate and the Preferred Securities represented
hereby are issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Declaration of Trust of the Trust
dated as of April 12, 2002, as the same may be amended from time to time (the
"Trust Agreement"), including the designation of the terms of Preferred
Securities as set forth therein. The Holder is entitled to the benefits of
the Preferred Securities Guarantee Agreement entered into by Independent Bank
Corp., a Massachusetts corporation, and The Bank of New York as guarantee
trustee, dated as of April 12, 2002, as the same may be amended from time to
time (the "Guarantee"), to the extent provided therein. The Trust shall
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.
Unless the Certificate of Authentication has been manually executed by
the Authentication Agent, this Certificate is not valid or effective.
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IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this Certificate this 12th day of April, 2002.
INDEPENDENT CAPITAL TRUST IV
By:
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Anthony W. DiRobbio
Administrative Trustee
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LEGEND
FOR CERTIFICATES EVIDENCING
GLOBAL PREFERRED SECURITIES ONLY:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Independent Capital Trust IV or its
agent for registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
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[FORM OF REVERSE OF CERTIFICATE]
The Trust will furnish without charge to any registered owner of
Preferred Securities who so requests, a copy of the Trust Agreement and the
Guarantee. Any such request should be in writing and addressed to Independent
Capital Trust IV, C/O THE BANK OF NEW YORK, 101 BARCLAY STREET, NEW YORK, NEW
YORK 10286, or to the Registrar named on the face of this Certificate.
The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT-- under Uniform Gift
TEN ENT -- as tenants by the entireties to Minors Act and
JT TEN -- as joint tenants with right of not as tenants
survival
Additional abbreviations may also be used though not in
the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
(Please insert social security or other identifying number of assignee)
(insert address and zip code of assignee)
the within Certificate and all rights and interests represented by the Preferred
Securities evidenced thereby, and hereby irrevocably constitutes and appoints
attorney
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to transfer the said Preferred Securities on the books of the within-named
Trust with full power of
substitution in the premises.
Dated: Signature:
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Note: The signature(s) to this
assignment must correspond
with the name(s) as written
upon the face of this
Certificate in every particular,
without alteration or
enlargement, or any change
whatever.
Signature(s) Guaranteed:
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NOTICE: Signature(s) must be guaranteed by an "eligible
guarantor institution" that is a member or participant in
a "signature guarantee program" (i.e., the Securities
Transfer Agents Medallion Program, the Stock Exchange
Medallion Program or the New York Stock Exchange, Inc.
Medallion Signature Program).
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EXHIBIT D
FORM OF PREFERRED SECURITIES CERTIFICATE OF AUTHENTICATION
This is one of the 8.375% Cumulative Trust Preferred Securities
referred to in the within-mentioned Trust Agreement.
THE BANK OF NEW YORK,
as Authentication Agent and Registrar
By:
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AUTHORIZED SIGNATURE
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