Exhibit 4.9
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
HMC MERGER CORPORATION
AS DEPOSITOR,
IBJ SCHRODER BANK & TRUST COMPANY
AS PROPERTY TRUSTEE,
DELAWARE TRUST CAPITAL MANAGEMENT, INC.
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF DECEMBER 29, 1998
HOST MARRIOTT FINANCIAL TRUST
TABLE OF CONTENTS
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions................................................... 2
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name....................................................... 13
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business................................................. 13
SECTION 2.3. Organizational Expenses.................................... 13
SECTION 2.4. Issuance of the Preferred Securities....................... 13
SECTION 2.5. Subscription and Purchase of Debentures;
Issuance of the Common Securities.......................... 14
SECTION 2.6. Declaration of Trust....................................... 14
SECTION 2.7. Authorization to Enter into Certain Transactions........... 15
SECTION 2.8. Assets of Trust............................................ 18
SECTION 2.9. Title to Trust Property.................................... 18
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. Payment Account............................................ 19
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions.............................................. 19
SECTION 4.2. Redemption................................................. 20
SECTION 4.3. Conversion................................................. 22
SECTION 4.4. Special Event Exchange or Redemption....................... 25
SECTION 4.5. Subordination of Common Securities......................... 27
SECTION 4.6. Payment Procedures......................................... 27
SECTION 4.7. Tax Returns and Reports.................................... 27
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust............... 27
SECTION 4.9. Payments under Indenture................................... 28
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ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1 Initial Ownership........................................ 28
SECTION 5.2 The Trust Securities Certificates........................ 28
SECTION 5.3 Delivery of Trust Securities Certificates................ 28
SECTION 5.4 Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer..................... 29
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates............................................. 33
SECTION 5.6. Persons Deemed Securityholders........................... 34
SECTION 5.7. Access to List of Securityholders' Names and Addresses... 34
SECTION 5.8. Maintenance of Office or Agency.......................... 34
SECTION 5.9. Appointment of Paying Agent.............................. 35
SECTION 5.10 Ownership of Common Securities by Depositor.............. 35
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate................................... 35
SECTION 5.12. Notices to Clearing Agency............................... 37
SECTION 5.13. Definitive Preferred Securities Certificates............. 37
SECTION 5.14. Rights of Securityholders................................ 37
SECTION 5.15. Restrictive Legends...................................... 37
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights............................. 38
SECTION 6.2. Notice of Meetings....................................... 40
SECTION 6.3. Meetings of Preferred Securityholders.................... 40
SECTION 6.4. Voting Rights............................................ 41
SECTION 6.5. Proxies, Etc............................................. 41
SECTION 6.6. Securityholder Action by Written Consent................. 41
SECTION 6.7. Record Date for Voting and Other Purposes................ 41
SECTION 6.8. Acts of Securityholders.................................. 41
SECTION 6.9. Inspection of Records.................................... 43
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee................................. 43
SECTION 7.2. Representations and Warranties of Depositor.............. 44
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ARTICLE 8
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities...................... 44
SECTION 8.2. Notice of Defaults....................................... 46
SECTION 8.3. Certain Rights of Property Trustee....................... 48
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities... 50
SECTION 8.5. May Hold Securities...................................... 50
SECTION 8.6. Compensation; Indemnity; Fees............................ 50
SECTION 8.7. Property Trustee Required; Eligibility of Trustees....... 51
SECTION 8.8. Conflicting Interests.................................... 51
SECTION 8.9. Resignation and Removal; Appointment of Successor........ 51
SECTION 8.10 Acceptance of Appointment by Successor................... 53
SECTION 8.11. Merger, Conversion, Consolidation or Succession to
Business...................................................53
SECTION 8.12. Preferential Collection of Claims Against Depositor
or Trust................................................. 54
SECTION 8.13. Reports by Property Trustee.............................. 54
SECTION 8.14. Reports to the Property Trustee.......................... 54
SECTION 8.15. Evidence of Compliance with Conditions Precedent......... 55
SECTION 8.16. Number of Trustees....................................... 55
SECTION 8.17. Delegation of Power...................................... 55
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date......................... 56
SECTION 9.2. Early Termination........................................ 56
SECTION 9.3. Termination.............................................. 56
SECTION 9.4. Liquidation.............................................. 56
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust................................................ 58
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders.................. 59
SECTION 10.2. Amendment................................................ 59
SECTION 10.3. Separability............................................. 60
SECTION 10.4. GOVERNING LAW............................................ 60
SECTION 10.5. Payments Due on Non-Business Day......................... 60
SECTION 10.6. Successors............................................... 60
SECTION 10.7. Headings................................................. 61
SECTION 10.8. Reports, Notices and Demands............................. 61
SECTION 10.9. Agreement Not to Petition................................ 61
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act... 62
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.................................. 62
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ARTICLE 11
REGISTRATION RIGHTS
SECTION 11.1. Registration Rights...................................... 62
EXHIBIT A Certificate of Trust of Host Marriott Financial Trust
EXHIBIT B Form of Certificate Depositary Agreement
EXHIBIT C Form of Common Securities of Host Marriott Financial Trust
EXHIBIT D Form of Preferred Securities of Host Marriott Financial Trust
EXHIBIT E Form of Regulation S Certificate
EXHIBIT F Form of Restricted Securities Certificate
EXHIBIT G Form of Unrestricted Securities Certificate
EXHIBIT H Notice of Conversion
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HOST FINANCIAL TRUST*
Certain Sections of this Trust Agreement
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE TRUST AGREEMENT
SECTION SECTION
Section 310 (a)(1)..........................................8.7
(a)(2)..........................................8.7
(a)(4)..........................................2.7(a)(ii)
(b).............................................8.8
Section 311 (a).............................................8.12
(b).............................................8.12
Section 312 (a).............................................5.7
(b).............................................5.7
(c).............................................5.7
Section 313 (a).............................................8.13(a)
(c).............................................10.8
(d).............................................8.13(c)
(a)(4)..........................................8.13(b)
(b).............................................8.13(b)
Section 314 (a).............................................8.14
(b).............................................Not Applicable
(c)(1)..........................................8.15
(c)(2)..........................................8.15
(c)(3)..........................................Not Applicable
(d).............................................Not Applicable
(e).............................................1.1, 8.15
Section 315 (a).............................................8.1(a), 8.3(a)
(b).............................................8.2, 10.8
(c).............................................8.1(a)
(d).............................................8.1, 8.3
(e).............................................Not Applicable
Section 316 (a).............................................Not Applicable
(a)(1)(A).......................................Not Applicable
(a)(1)(B).......................................Not Applicable
(a)(2)..........................................Not Applicable
(b).............................................Not Applicable
(c).............................................6.7
Section 317 (a)(1)..........................................Not Applicable
(b).............................................5.9
Section 318 (a).............................................10.10
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* Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 29, 1998
among (i) HMC Merger Corporation, a Maryland corporation (including any
successors or assigns, "the Depositor"), (ii) IBJ Schroder Bank & Trust Company,
a New York banking corporation, as property trustee (in such capacity, the
"Property Trustee" and, in its personal capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) Delaware Trust Capital Management, Inc., a
corporation duly organized and existing under the laws of the State of Delaware,
as Delaware trustee (in such capacity, the "Delaware Trustee"), (iv) Robert E.
Parsons, Jr., an individual, Ed Walter, an individual, and Christopher G.
Townsend, an individual, each of whose address is c/o Host Marriott Corporation,
10400 Fernwood Road, Bethesda, Maryland 20817, (each, an "Administrative
Trustee" and, collectively, the "Administrative Trustees" and, collectively with
the Property Trustee and Delaware Trustee, the "Trustees") and (v) the several
Holders as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor and the Trustees have heretofore duly declared and
established a business trust pursuant to the Delaware Business Trust Act by the
entering into of that certain Trust Agreement, dated as of December 28, 1998
(the "Original Trust Agreement"), and by the execution and filing by the
Trustees with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on December 29, 1998, attached as Exhibit A, for the purposes of
(i) merging Host Financial Trust, a Delaware business trust originally formed on
November 25, 1996 (the "Old Trust") with and into the Trust (the "Merger"), (ii)
in connection with the Merger, having the Trust assume all of the obligations
and liabilities of the Old Trust, including under the Common Securities and the
Preferred Securities, which originally represented undivided beneficial
interests in the assets of the Old Trust, and pursuant to the Merger and this
Trust Agreement, hereafter represent undivided beneficial interests in the
assets of the Trust, and (iii) in connection with the Merger, acquiring all of
the Old Trust's assets and rights, including those accruing under the Debentures
(as defined herein) originally acquired by the Old Trust with the proceeds from
the sale of the Common Securities and the Preferred Securities pursuant to the
Purchase Agreement;
WHEREAS, other than the Common Securities and the Preferred Securities, no
interests in the Trust have been issued; and
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other party and for
the benefit of the Holders of the Preferred Securities, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Trust Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
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(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to the Trust Securities, the amount
of Additional Interest (as defined in the Indenture) paid by the Depositor on
the Debentures.
"Additional Sums" means, with respect to the Trust Securities, the amount
of Additional Sums (as defined in the Indenture) paid by the Depositor on the
Debentures.
"Administrative Trustee" means each of Robert E. Parsons, Jr., Ed Walter
and Christopher G. Townsend, each 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 in interest in such capacity, or any successor
administrative trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, provided, however that an Affiliate of the
Depositor shall not be deemed to include the Trust. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Certificate or beneficial interest therein, the rules and
procedures of Euroclear and Cedel, and of the Clearing Agency for such security,
in each case to the extent applicable to such transaction and as in effect from
time to time.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other
2
similar official) of such Person or of any substantial part of its property
or ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance
of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means either the board of directors of the Depositor
or any committee of that board duly authorized to act hereunder.
"Book-Entry Preferred Securities Certificates" means a beneficial interest
in the Preferred Securities Certificates, ownership and transfers of which shall
be made through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in The City of New York are authorized or required by
law or executive order to remain closed or a day on which the Corporate Trust
Office of the Property Trustee or the corporate trust office of the Debenture
Trustee, is closed for business.
"Certificate Depository Agreement" means the agreement among the Old Trust,
the predecessor to the Depositor and The Depository Trust Company, as the
initial Clearing Agency, dated as of the Closing Date and assumed by the Trust
by operation of law pursuant to the Merger, relating to the Trust Securities
Certificates substantially in the form attached as Exhibit B, as the same may be
amended and supplemented from time to time.
"Certificated Preferred Security" has the meaning specified in Section 5.2.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
3
"Closing Date" means the first Time of Delivery (as defined in the Purchase
Agreement), which date is the date of execution and delivery of the Restated
and Amended Trust Agreement of the Old Trust.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C, but
including any certificate evidencing ownership of Common Securities in the form
issued by the Old Trust.
"Common Security" means an undivided beneficial interest in the assets of
the Old Trust, which by operation of law pursuant to the Merger represents an
undivided beneficial interest in the assets of the Trust, having a Liquidation
Amount with respect to the assets of the Trust of $50 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Stock" means common stock, $0.01 par value per share, of the
Depositor.
"Conversion Agent" has the meaning specified in Section 4.3.
"Conversion Date" has the meaning specified in Section 4.3.
"Conversion Expiration Date" means the date selected by the Depositor not
less than 30 days nor more than 60 days after the date on which the Depositor
issues a press release announcing its intention to terminate the conversion
rights of the Holders.
"Conversion Price" has the meaning specified in Section 4.3.
"Corporate Trust Office" means the principal corporate trust office of the
Property Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at One State
Street, 11th Floor, New York, New York 10004, Attention: Corporate Trust &
Agency Department.
"Current Market Price", with respect to Common Stock, means for any day the
last reported sale price, regular way, on such day, or, if no sale takes place
on such day, the average of the reported closing bid and asked prices on such
day, regular way, in either case as reported on the New York Stock Exchange
Composite Transactions Tape, or, if Common Stock is not listed or admitted to
trading on the New York Stock Exchange on such day, on the principal national
securities exchange on which Common Stock is listed or admitted to trading, if
Common Stock is listed on a national securities exchange, or the Nasdaq National
Market, or, if Common Stock is not quoted or admitted to trading on such
quotation system, on the principal quotation system on which Common Stock may be
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid
4
and asked prices of Common Stock in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any New York Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose or, if not so available in such
manner, as otherwise determined in good faith by the Board of Directors.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption thereof under the
Indenture.
"Debenture Trustee" means IBJ Schroder Bank & Trust Company, a New York
banking corporation, as trustee under the Indenture.
"Debentures" means $567,050,000 aggregate principal amount of the
Depositor's predecessor's 6 3/4% convertible subordinated debentures issued
pursuant to the Indenture, the obligations under which have been assumed by the
Depositor.
"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (S)(S) 3801, et. seq., as it may be amended from time to
time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Trust Agreement solely in its capacity as Delaware Trustee
of the Trust formed and continued hereunder and not in its individual capacity,
or its successor in interest in such capacity, or any successor Delaware trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Direct Action" has the meaning specified in Section 6.8.
"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.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means the occurrence of a Debenture Event of Default,
whatever the reason for such Debenture 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.
5
"Exchange Notice" has the meaning specified in Section 4.4(b).
"Expiration Date" has the meaning specified in Section 9.1.
"Global Certificate" means a Preferred Security that is registered in the
Securities Register in the name of a Clearing Agency or a nominee thereof.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor's predecessor and IBJ Schroder Bank & Trust Company, a New York
banking corporation, as guarantee trustee, on the Closing Date, for the benefit
of the Holders of the Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Securities Certificate
representing a Trust Security is registered, such Person being a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Convertible Subordinated Indenture, dated as of
December 2, 1996 between the Depositor's predecessor and the Debenture Trustee,
as amended or supplemented from time to time.
"Investment Company Event" means the receipt by the Property Trustee, on
behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having a
national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), 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") that there is more
than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the 1940 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.
"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.
"Liquidated Damages" has the meaning specified under the Indenture.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $50 per Trust Security.
"Liquidation Date" means each date on which Debentures or cash are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
6
"1940 Act" means the Investment Company Act of 1940, as amended.
"Notice of Conversion" means the notice given by a holder of Preferred
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Preferred Security for Debentures and to convert such Debentures into
Common Stock on behalf of such holder. Such notice is substantially in the form
set forth in Exhibit H.
"Officers' Certificate" means a certificate signed by (i) the Chairman of
the Board, a Vice Chairman, the President or a Vice President, and by (ii) the
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 8.15 shall be the
principal executive, financial or accounting officer of the Depositor. Any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant of 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 officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor, and who may be an employee
of any thereof, and who shall be acceptable to the Property Trustee. Any Opinion
of Counsel delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each individual signing the Opinion of Counsel
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 individual in rendering the Opinion
of Counsel;
(c) a statement that each individual has made such examination or
investigation as is necessary to enable such individual 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 individual,
such condition or covenant has been complied with.
7
"Optional Redemption Price" means, except as set forth below, with respect
to the Preferred Securities, the following percentages of the Liquidation
Amounts thereof, and accumulated and unpaid Distributions, if any, to the date
fixed for redemption if redeemed during the twelve-month period commencing
December 2 in each of the following years indicated:
Year Redemption Price Year Redemption Price
1999 104.725% 2003 102.025%
2000 104.050% 2004 101.350%
2001 103.375% 2005 100.675%
2002 102.700% 2006 and 100%
thereafter
In the event of a redemption of Trust Securities upon the occurrence of a Tax
Event, Trust Securities shall be redeemed at the redemption price of $50 per
Trust Security and all accumulated and unpaid Distributions, if any to the date
fixed for redemption.
In the event of a redemption of Trust Securities pursuant to Section 4.2(a)(ii),
Trust Securities shall be redeemed as the redemption price specified therein.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Securities Registrar
or delivered to the Securities Registrar for cancellation or tendered
for conversion;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Trust Agreement;
and
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered
pursuant to Section 5.5: provided, however, that in determining
whether the Holders of the requisite Liquidation Amount of the
Outstanding Trust Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Trust
Securities owned by the Depositor, any Trustee or any affiliate of
the Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in
8
determining whether any Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Trust 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 Trust Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate.
Trust Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction
of the Securities Registrar the pledgee's right so to act with respect
to such Trust Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9.
"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 will be held and from which the Property Trustee shall make
payments to the Securityholders in accordance with Section 4.1.
"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 Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit D, but
including any certificate evidencing ownership of Preferred Securities in the
form issued by the Old Trust.
"Preferred Security" means an undivided beneficial interest in the assets
of the Old Trust, which by operation of law pursuant to the Merger represents an
undivided beneficial interest in the assets of the Trust, having a Liquidation
Amount with respect to the assets of the Trust of $50 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of November 25,
1996 among the Old Trust, the Depositor's predecessor and the Purchasers named
therein.
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"Redemption Date" means, with respect to any Trust Security to be redeemed,
each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $50 per Trust
Security, plus accumulated and unpaid Distributions (including any Additional
Sums) to the date of redemption.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated December 2, 1996, among the Depositor's predecessor, the Old Trust, and
the Purchasers named in the Purchase Agreement.
"Regulation S Certificate" means a certificate substantially in the form
set forth in Exhibit E.
"Regulation S Global Certificate" has the meaning specified in Section 5.2.
"Regulation S Legend" has the meaning specified in Section 5.15(b).
"Regulation S Preferred Security" means all Preferred Securities required
pursuant to Section 5.4(c) to bear a Regulation S Legend. Such term includes
the Regulation S Global Certificate.
"Relevant Trustee" has the meaning specified in Section 8.9.
"Restricted Global Certificate" has the meaning specified in Section 5.2.
"Restricted Period" means, with respect to the Preferred Securities, the
one-year period, and with respect to the Debentures or the Common Stock Isabel
on conversion of the Preferred Securities, the 40-day period, in either case
following the last original issue date of the Preferred Securities (including
any Preferred Securities issued to cover over-allotments).
"Restricted Securities" means all Preferred Securities required pursuant to
Section 5.4 to bear any Restricted Securities Legend. Such term includes the
Restricted Global Certificate.
"Restricted Securities Certificate" means a certificate substantially in
the form set forth in Exhibit F.
"Restricted Securities Legend" has the meaning specified in Section
5.15(a).
"Rights" has the meaning specified in Section 4.3.
"Rule 144A Preferred Securities" has the meaning specified in Section 5.2.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
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"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Special Event" means a Tax Event or an Investment Company Event.
"Successor Delaware Trustee" has the meaning specified in Section 8.9.
"Successor Property Trustee" has the meaning specified in Section 8.9.
"Successor Securities" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Property Trustee, on behalf of the
Trust, of an Opinion of Counsel, rendered by a law firm having a national tax
and securities practice (which Opinion of Counsel shall not have been rescinded
by such law firm), to the effect that, as a result of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Trust Agreement, there is more than an
insubstantial risk in each case after the date thereof that (i) the Trust is, or
will be within 90 days after the date thereof, subject to United States Federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Depositor on the Debentures is not, or will not be,
within 90 days after the date hereof, deductible, in whole or in part, for
United States Federal income tax purposes or (iii) the Trust is, or will be
within 90 days after the date thereof, subject to more than de minimis amount of
other taxes, duties, assessments or other governmental charges.
"Trust" means the Delaware business trust continued hereby and identified
on the cover page of this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means the property acquired by the Trust by operation of
law pursuant to the Merger, including (a) the Debentures, (b) any cash on
deposit in, or owing to, the Payment
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Account and (c) all proceeds and rights in respect of the foregoing to be held
by the Property Trustee pursuant to the terms of this Trust Agreement for the
benefit of the Securityholders.
"Trust Securities Certificate" means any one of the Common Securities
Certificates, the Global Certificates or the Certificated Preferred Securities,
including, without limitation, any certificate evidencing any Trust Securities
in the form issued by the Old Trust.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
"Unrestricted Securities Certificate" means a certificate substantially in
the form set forth in Exhibit G.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as "Host
Marriott Financial Trust", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued. Contemporaneously with the execution
and delivery of this Trust Agreement, the Administrative Trustees are authorized
and directed to execute and file a Certificate of Amendment to the Trust's
Certificate of Trust, to change the Trust's name from Host Marriott REIT
Financial Trust to Host Marriott Financial Trust, the name of the Old Trust.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is 300 Delaware
Avenue, Wilmington, Delaware 19801, Attention: Corporate Trust Administration,
or such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is 10400 Fernwood Road, Bethesda,
Maryland, 20817.
SECTION 2.3. Organizational Expenses. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. On November 25, 1996
the Depositor's predecessor and an administrative trustee on behalf of the Old
Trust executed and delivered the Purchase Agreement. On the Closing Date, an
administrative trustee, on behalf of the Old Trust, executed in accordance with
section 5.2 of the Amended and Restated Trust Agreement of the Old Trust and
delivered to the Purchasers named in the Purchase Agreement Preferred Securities
Certificates, in an aggregate amount of 11,000,000 Preferred Securities having
an aggregate Liquidation Amount of $550,000,000, against receipt of the
aggregate purchase price of such
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Preferred Securities of $550,000,000, which amount the administrative trustees
of the Old Trust thereafter promptly delivered to the property trustee of the
Old Trust. All such Preferred Securities, with no further action required on the
part of the holders thereof, the Old Trust, the Trust, or the Trustees (other
than the consummation of the Merger, which has been accomplished), shall be and
constitute Preferred Securities of the Trust as if originally issued under this
Trust Agreement on their respective dates of issuance.
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of the
Common Securities. On the Closing Date, the administrative trustees, on behalf
of the Old Trust, subscribed to and purchased from the Depositor's predecessor
Debentures, registered in the name of the property trustee of the Old Trust (in
its capacity as such) and having an aggregate principal amount equal to
$567,050,000, and, in satisfaction of the purchase price for such Debentures,
the property trustee of the Old Trust, on behalf of the Old Trust, delivered to
the Depositor's predecessor the sum of $567,050,000. Contemporaneously
therewith, an administrative trustee, on behalf of the Old Trust, executed in
accordance with Section 5.2 of the Restated and Amended Trust Agreement of the
Old Trust and delivered to the Depositor's predecessor Common Securities
Certificates registered in the name of the Depositor's predecessor, in an
aggregate amount of 341,000 Common Securities having an aggregate Liquidation
Amount of $17,050,000 against receipt of the aggregate purchase price of such
Common Securities from the Depositor of the sum of $17,050,000. All such Common
Securities, with no further action required on the part of the holder thereof,
the Old Trust, the Trust, or the Trustees (other than the consummation of the
Merger, which has been accomplished), shall be and constitute Common Securities
of the Trust as if originally issued under this Trust Agreement on their
respective dates of issuance.
SECTION 2.6. Declaration of Trust. The exclusive purposes and functions
of the Trust are (a) merging the Old Trust with and into the Trust pursuant to
the Merger, which as of the execution hereof has been accomplished, (b) in
connection with the Merger, having the Trust assume all of the obligations and
liabilities of the Old Trust, including under the Common Securities and the
Preferred Securities, which originally represented undivided beneficial
interests in the assets of the Old Trust, and pursuant to the Merger and this
Trust Agreement, hereafter represent undivided beneficial interests in the
assets of the Trust, (c) in connection with the Merger, acquiring all of the Old
Trust's assets and rights, including those accruing under the Debentures
originally acquired by the Old Trust with the proceeds from the sale of the
Common Securities and the Preferred Securities pursuant to the Purchase
Agreement, and (d) engaging in only those other activities necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States Federal income tax purposes as a grantor
trust. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust
for the
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sole and limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
Section 2.6 and paragraph (b) of this Section, and in accordance with the
following provisions (i) and (ii), the Trustees shall have the exclusive power,
duty and the authority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrative Trustee shall have the power
and authority to act on behalf of the Trust with respect to the following
matters:
(A) to issue and sell the Trust Securities, including all matters
relating to the prior issuance and sale of the Trust Securities by the Old
Trust; provided, however, that the Trust may issue no more than one series
of Preferred Securities and no more than one series of Common Securities,
and, provided, further, that there shall be no interests in the Trust other
than the Trust Securities, and the issuance of Trust Securities shall be
limited to simultaneous issuance of both Preferred Securities and Common
Securities that previously occurred on the Closing Date and any other date
Preferred Securities and Common Securities may have been sold pursuant to
the over-allotment option granted to the initial purchasers in the Purchase
Agreement, subject to the issuance of Trust Securities pursuant to Section
5.5 and Successor Securities pursuant to Section 9.5;
(B) to perform on behalf of the Trust, the Registration Rights
Agreement, the Purchase Agreement and the Certificate Depository Agreement,
each of which the Trust assumed from the Old Trust by operation of law
pursuant to the Merger, and to cause the Trust to enter into, execute,
and perform on behalf of the Trust such other agreements as may be
necessary or incidental to the purposes and function of the Trust;
(C) to assist in ongoing registration matters relating to the
Preferred Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification of this
Trust Agreement as a trust indenture under the Trust Indenture Act;
(D) to assist in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the Depositor,
and the registration of the Preferred Securities under the Securities
Exchange Act of 1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to the foregoing
(only to the extent that such listing or registration is requested by the
Depositor);
(E) to appoint a Paying Agent, a Securities Registrar and an
authenticating agent in accordance with this Trust Agreement, all of which
shall be the same as their respective counterparts under the Amended and
Restated Trust Agreement of the Old Trust;
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(F) to the extent provided in this Trust Agreement, to wind up the
affairs of and liquidate the Trust and prepare, execute and file the
certificate of cancellation with the Secretary of State of the State of
Delaware;
(G) unless otherwise determined by the Depositor, the Property Trustee
or the Administrative Trustees, or as otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to execute on behalf of the
Trust (either acting alone or together with any other Administrative
Trustees) any documents that the Administrative Trustees have the power to
execute pursuant to this Trust Agreement; and
(H) to take any action incidental to the foregoing as the Trustees may
from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the 1940 Act;
(ii) causing the Trust to be classified for United States Federal
income tax purposes as a grantor trust; and
(iii) cooperating with the Depositor to ensure that the Debentures
will be treated as indebtedness of the Depositor for United States
Federal income tax purposes;
provided that such action does not adversely affect in any material respect
the interests of Securityholders except as otherwise provided in Section
10.2(a).
(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 handling and responsibility for the payment account of the Old
Trust acquired by the Trust by operation of law pursuant to the Merger;
(B) the receipt of, and by operation of law pursuant to the Merger
taking title to, 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 from the Trust Property of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
15
(F) the sending of notices of default, other notices and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding up of
the affairs of and liquidation of the Trust and the preparation, execution
and filing of the certificate of cancellation with the Secretary of State
of the State of Delaware;
(I) after an Event of Default, 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) subject to 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); and
(K) to act as Paying Agent and/or Securities Registrar to the extent
appointed as such hereunder.
(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 Trust shall not, and the Trustees shall not and
shall cause the Trust not to (i) invest any proceeds received by the Trust from
holding the Debentures (rather, the Trustees shall distribute all such proceeds
to the Securityholders pursuant to the terms of this Trust Agreement and the
Trust Securities), acquire any investments or engage in any activities not
authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Securityholders, except as expressly provided
herein, (iii) take any action that would cause the Trust to fail or cease to
qualify as a "grantor trust" for United States Federal income tax purposes, (iv)
make any loans or incur any indebtedness for borrowed money or issue any other
debt, (v) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property, (vi) possess any power or otherwise act in
such a way as to vary the Trust assets or the terms of the Trust Securities in
any way whatsoever except as permitted by the terms of this Trust Agreement, or
(vii) issue any securities or other evidences of beneficial ownership of, or
beneficial interest in, the Trust other than the Trust Securities. 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 original issuance and sale of the Preferred
Securities, the Depositor's predecessor had the right and responsibility to
assist the Old Trust with respect to, or effect on behalf of the Old Trust, the
following actions. Pursuant to this Trust Agreement, the
16
Depositor shall have the right and responsibility, as applicable, to assist the
Trust with respect to, or effect on behalf of the Trust, the following actions
(and any actions taken by the Depositor's predecessor or the Depositor in
furtherance of the following prior to the date of this Trust Agreement are
hereby ratified and confirmed in all respects):
(i) to file by the Trust with the Commission and to execute on
behalf of the Trust a registration statement on the appropriate form in
relation to the Preferred Securities, including any amendments thereto;
(ii) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and prepare for execution
and filing any documents to be executed and filed by the Trust or on behalf
of the Trust, as the Depositor deems necessary or advisable in order to
comply with the applicable laws of any such States and foreign
jurisdictions;
(iii) to the extent necessary, to prepare for filing by the Trust
with the Commission and to execute on behalf of the Trust a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Securities Exchange Act of
1934, as amended, including any amendments thereto (it being understood
that neither the Trust nor the Depositor has any obligation under the
Indenture, the Purchase Agreement or the Trust Agreement to register any
Trust Securities under the Securities Exchange Act of 1934, as amended or
to list any Trust Securities on any securities exchange);
(iv) any other actions necessary or incidental to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or taxed as a corporation
for United States Federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Depositor for United States Federal income tax
purposes. In this connection, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes, so long as such action does not adversely affect in
any material respect the interests of the Holders of the Preferred Securities
except as otherwise provided in Section 10.2(a).
SECTION 2.8. Assets of Trust. The assets of the Trust shall consist of
only the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the
17
Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement. The Securityholder shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the property trustee of the Old Trust
established the Payment Account under the Amended and Restated Trust Agreement
of the Old Trust. Pursuant to the Merger and by operation of law, the Property
Trustee acquired title to the Payment Account and shall maintain the same in
accordance with this Trust Agreement. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein provided
including (and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and shall
accrue from the date of original issuance under the Amended and Restated Trust
Agreement of the Old Trust, or the most recent Distribution Date (as defined
herein) and, except in the event that the Depositor exercises its right to defer
the payment of interest on the Debentures pursuant to the Indenture, have been
paid quarterly in arrears on March 1, June 1, September 1 and December 1 of each
year, commencing on March 1, 1997, and shall continue to be payable quarterly in
arrears on March 1, June 1, September 1 and December 1 of each year, commencing
on March 1, 1999 (which dates correspond to the interest payment dates on the
Debentures), when, as and if available for payment by the Property Trustee, as
further described in paragraph (c) of this Section 4.1. If any date on which
Distributions are otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distributions shall be made on the next succeeding
day which is a Business Day (and no interest shall accrue for the period from
and after such date until the next succeeding Business Day) 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").
18
(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and the Distributions on the Trust Securities shall be payable
at a rate of 6 3/4% per annum of the Liquidation Amount of the Trust Securities,
such rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. The amount of Distributions payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. For periods
less than a full month, distributions shall reflect interest on Debentures
computed on the basis of the actual number of elapsed days based on a 360-day
year. 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 from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the date which is the fifteenth day (whether or not a Business Day) next
preceding such Distribution Date.
SECTION 4.2. Redemption. (a)
(i) Upon an optional redemption (as set forth in the Indenture) of
Debentures, the proceeds from such redemption shall be applied to redeem
Trust Securities having an aggregate Liquidation Amount equal to the
aggregate principal amount of the Debentures so redeemed by the Depositor,
including pursuant to Section 4.4, at the Optional Redemption Price, and
upon a mandatory redemption (as set forth in the Indenture) of Debentures,
the proceeds from such redemption shall be applied to redeem Trust
Securities, having an aggregate Liquidation Amount equal to the aggregate
principal amount of the Debentures so redeemed by the Depositor, at the
Redemption Price.
(ii) If at any time following the Conversion Expiration Date, less
than five percent (5%) in principal amount of the Debentures originally
issued by the Depositor remain outstanding, such Debentures are redeemable,
at the option of the Depositor, in whole but not in part, at a redemption
price equal to the aggregate principal amount thereof, and all accrued and
unpaid interest; in such event, the proceeds from such redemption shall be
applied to redeem the Outstanding Trust Securities.
(b) Notice of redemption (which notice will be irrevocable) 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 the Depositor and
each Holder of Trust Securities to be redeemed, at such Holder's address as it
appears in the Securities Register. All notices of redemption shall state:
(i) the Redemption Date;
19
(ii) the Redemption Price or the Optional Redemption Price, as
the case may be;
(iii) the CUSIP number;
(iv) if less than all of the Outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount
of the particular Trust Securities to be redeemed;
(v) If the Preferred Securities are convertible, (A) that a
Holder of Preferred Securities who desires to convert such Preferred
Securities called for redemption must satisfy the requirements for
conversion contained in Section 4.3 below, (B) the Conversion Price
and (C), if previously determined, the Conversion Expiration Date;
(vi) that on the Redemption Date the Redemption Price or the
Optional Redemption Price, as the case may be, will become due and
payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
(vii) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price or the Optional
Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price or the Optional Redemption Price, as the case may be,
with the proceeds from the contemporaneous redemption of Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price or the Optional
Redemption Price, as the case may be, shall be payable on each Redemption Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price or the Optional
Redemption Price, as the case may be.
(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, subject to Section 4.2(c), the Property Trustee will, so long as and to
the extent the Preferred Securities are in book-entry-only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds sufficient
to pay the applicable Redemption Price. If the Preferred Securities are no
longer in book-entry only form, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price or Optional Redemption Price, as the case may be, on
such Preferred Securities held in certificated form and will give the Paying
Agent irrevocable instructions and authority to pay the Redemption Price or the
Optional Redemption Price, as the case may be, to the 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
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been
20
given and funds deposited as required, then, upon the date of such deposit, all
rights of Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the Redemption Price
or the Optional Redemption Price, as the case may be, but without interest, and
such Trust Securities will cease to be Outstanding. In the event that any date
on which any Redemption Price or the Optional Redemption Price, as the case may
be, is payable is not a Business Day, then payment of the Redemption Price or
the Optional Redemption Price, as the case may be, payable on such date will be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), with the same force and
effect as if made on such date.
(e) 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
that are to be redeemed. 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 lot or by such other method as the Property Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $50 or an integral multiple of $50 in excess
thereof) of the liquidation amount of the Preferred Securities. The Property
Trustee shall promptly notify the Securities Registrar and the Conversion Agent
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; it being understood that, in the case of
Preferred Securities registered in the name of and held of record by the
Clearing Agency (or any successor) or any nominee, the distribution of the
proceeds of such redemption will be made in accordance with the procedures of
the Clearing Agency or its nominee. 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. In the event
of any redemption in part, the Trust shall not be required to (i) issue,
register the transfer of or exchange of any Preferred Security during a period
beginning at the opening of business 15 days before any selection for redemption
of Preferred Securities and ending at the close of business on the earliest date
in which the relevant notice of redemption is deemed to have been given to all
holders of Preferred Securities to be so redeemed or (ii) register the transfer
of or exchange of any Preferred Securities so selected for redemption, in whole
or in part, except for the unredeemed portion of any Preferred Securities being
redeemed in part.
SECTION 4.3. Conversion. The Holders of Trust Securities, subject to the
limitations set forth in this Section, shall have the right at any time prior to
the Conversion Expiration Date, at their option, to cause the Conversion Agent
to convert Trust Securities, on behalf of the converting Holders, into shares of
Common Stock in the manner described herein on and subject to the following
terms and conditions:
(i) The Trust Securities will be convertible into fully paid and
nonassessable shares of Common Stock pursuant to the Holder's direction to the
Conversion Agent to exchange such Trust Securities for a portion of the
Debentures, and immediately convert such amount of Debentures into fully paid
and nonassessable shares of Common Stock at an initial rate of 2.6876 shares of
Common
21
Stock for each Trust Security (which is equivalent to a conversion price of
$18.604 per $50 principal amount of Debentures), subject to certain adjustments
set forth in the Indenture (as so adjusted, "Conversion Price").
(ii) In order to convert Trust Securities into Common Stock, the Holder of
such Trust Securities shall submit to the Conversion Agent an irrevocable Notice
of Conversion to convert Trust Securities on behalf of such Holder, together, if
the Trust Securities are in certificated form, with such certificates. The
Notice of Conversion shall (i) set forth the number of Trust Securities to be
converted and the name or names, if other than the Holder, in which the shares
of Common Stock should be issued and (ii) direct the Conversion Agent (a) to
exchange such Trust Securities for a portion of the Debentures held by the
Property Trustee (at the rate of exchange specified in the preceding paragraph)
and (b) to immediately convert such Debentures, on behalf of such Holder, into
Common Stock (at the conversion rate specified in the preceding paragraph). The
Conversion Agent shall notify the Property Trustee of the Holder's election to
exchange Trust Securities for a portion of the Debentures held by the Property
Trustee and the Property Trustee shall, upon receipt of such notice, deliver to
the Conversion Agent the appropriate principal amount of Debentures for exchange
in accordance with this Section. The Conversion Agent shall thereupon notify
the Depositor of the Holder's election to convert such Debentures into shares
of Common Stock. Holders of Trust Securities at the close of business on a
Distribution payment record date will be entitled to receive the Distribution
paid on such Trust Securities on the corresponding Distribution Date
notwithstanding the conversion of such Trust Securities following such record
date but prior to such Distribution Date. Except as provided above, neither the
Trust nor the Depositor will make, or be required to make, any payment,
allowance or adjustment upon any conversion on account of any accumulated and
unpaid Distributions whether or not in arrears accrued on the Trust Securities
surrendered for conversion, or on account of any accumulated and unpaid
dividends on the shares of Common Stock issued upon such conversion. Trust
Securities shall be deemed to have been converted immediately prior to the close
of business on the day on which an irrevocable Notice of Conversion relating to
such Trust Securities is received by the Conversion Agent in accordance with the
foregoing provision (the "Conversion Date"). The Person or Persons entitled to
receive the Common Stock issuable upon conversion of the Debentures shall be
treated for all purposes as the record holder or holders of such Common Stock on
the date of conversion. As promptly as practicable on or after the Conversion
Date, the Depositor shall issue and deliver at the office of the Conversion
Agent a certificate or certificates for the number of full shares of Common
Stock issuable upon such conversion, together with the cash payment, if any, in
lieu of any fraction of any share to the Person or Persons entitled to receive
the same, unless otherwise directed by the Holder in the notice of conversion
and the Conversion Agent shall distribute such certificate or certificates to
such Person or Persons.
(iii) On and after December 2, 1999, the Depositor may, at its option,
cause the conversion rights of holders of the Debentures (and the corresponding
conversion rights of Holders of Trust Securities) to expire; provided, however,
that the Depositor may exercise this option only if for 20 trading days within
any period of 30 consecutive trading days, including the last trading day of
such period, the Current Market Price of Common Stock exceeds 120% of the
Conversion Price. In order to exercise its option to terminate the conversion
rights of the Debentures, the Depositor must issue a press release for
publication on the Dow Jones News Service announcing the Conversion Expiration
Date prior to the opening of business on the second trading day after any
22
period in which the condition in the preceding sentence has been met, but in no
event prior to December 2, 1999. The press release shall announce the Conversion
Expiration Date (which may not occur sooner than 30 nor more than 60 days after
the Depositor issues the press release announcing its intention to terminate the
conversion rights of the Debentures) and provide the current Conversion Price
and Current Market Price of Common Stock, in each case as of the close of
business on the trading day next preceding the date of the press release.
Conversion rights will terminate at the close of business on the Conversion
Expiration Date. The Depositor, or at the request of the Depositor, the Property
Trustee shall send notice of the expiration of conversion rights by first-class
mail to the Holders of the Trust Securities and the holders of the Debentures
not more than four Business Days after the Depositor issues the press release
or, if the Property Trustee is requested to send such notice, which shall be on
the date of such press release, after the Depositor delivers written
instructions to the Property Trustee containing the information required by the
next sentence to be in the notice. Such mailed notice of the expiration of the
conversion rights of the Holders shall state: (A) the Conversion Expiration
Date; (B) the Conversion Price of the Trust Securities and the Current Market
Price of the Common Stock, in each case as of the close of business on the
Business Day next preceding the date of the notice of expiration of the
conversion rights of the Holders; (C) the place or places at which Trust
Securities may be surrendered prior to the Conversion Expiration Date for
certificates representing shares of Common Stock; and (D) such other information
or instructions as the Depositor deems necessary or advisable to enable a Holder
to exercise its conversion right hereunder. No defect in the notice of
expiration of the conversion rights of the Holders or in the mailing thereof
with respect to any Trust Security shall affect the validity of such notice with
respect to any other Trust Security. As of the close of business on the
Conversion Expiration Date, the Debentures (and correspondingly, the Trust
Securities) shall no longer be convertible into Common Stock. In the event that
the Depositor does not exercise its option to terminate the conversion rights of
the Debentures, the Conversion expiration Date with respect to the Trust
Securities will be the close of business two Business Days preceding the date
set for redemption of the Trust Securities upon the mandatory or optional
redemption of the Debentures.
(iv) Each Holder of a Trust Security by its acceptance thereof initially,
pursuant to the Amended and Restated Trust Agreement of the Old Trust, appointed
IBJ Schroder Bank & Trust Company not in its individual capacity but solely as
conversion agent (the "Conversion Agent") for the purpose of effecting the
conversion of Trust Securities in accordance with this Section. IBJ Schroder
Bank & Trust Company, not in its individual capacity but solely as Conversion
Agent shall remain the Conversion Agent under this Trust Agreement. In
effecting the conversion and transactions described in this Section, the
Conversion Agent shall be acting as agent of the Holders of Trust Securities
directing it to effect such conversion transactions. The Conversion Agent is
hereby authorized (i) to exchange Trust Securities from time to time for
Debentures held by the Trust in connection with the conversion of such Trust
Securities in accordance with this Section and (ii) to convert all or a portion
of the Debentures into Common Stock and thereupon to deliver such shares of
Common Stock in accordance with the provisions of this Section and to deliver
to the Property Trustee any new Debenture or Debentures for any resulting
unconverted principal amount delivered to the Conversion Agent by the Debenture
Trustee.
(v) No fractional shares of Common Stock will be issued as a result of
conversion, but, in lieu thereof, such fractional interest will be paid in cash
by the Depositor to the Conversion
23
Agent in an amount equal to the Current Market Price of the fractional share of
the Common Stock, and the Conversion Agent will in turn make such payment to the
Holder or Holders of Trust Securities so converted.
(vi) Nothing in this Section 4.3 shall limit the requirement of the Trust
to withhold taxes pursuant to the terms of the Trust Securities or as set forth
in this Agreement or otherwise required of the Property Trustee or the Trust to
pay any amounts on account of such withholdings.
SECTION 4.4. Special Event Exchange or Redemption.
(a) If a Special Event shall occur and be continuing, the Property Trustee
shall direct the Conversion Agent to exchange all Outstanding Trust Securities
for Debentures having a principal amount equal to the aggregate Liquidation
Amount of the Trust Securities to be exchanged and with accrued interest in an
amount equal to any unpaid Distribution (including any Additional Amounts) on
the Trust Securities; provided, however, that, in the case of a Tax Event, the
Depositor shall have the right to (i) direct that less than all, or none, as
appropriate, of the Trust Securities be so exchanged if and for so long as the
Depositor shall have elected to pay any Additional Sums (as defined in the
Indenture) such that the amount received by Holders of Trust Securities not so
exchanged in respect of Distributions and other distributions are not reduced as
a result of such Tax Event, and shall not have revoked any such election or
failed to make such payments or (ii) cause the Trust Securities to be redeemed
in the manner set forth below. If a Tax Event shall occur or be continuing, the
Depositor shall have the right, upon not less than 30 nor more than 60 days'
notice, to redeem the Debentures, in whole or in part, for cash upon the later
of (i) 90 days following the occurrence of such Tax Event or (ii) December 2,
1999. Promptly following such redemption, Trust Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Optional Redemption Price on a pro
rata basis.
(b) Notice of any exchange pursuant to this Section 4.4 (an "Exchange
Notice") of the Trust Securities, which Exchange Notice shall be irrevocable,
will be given by the Property Trustee by first-class mail to the Depositor and
to each record Holder of Trust Securities to be exchanged not fewer than 30 nor
more than 60 days prior to the date fixed for exchange thereof. For purposes of
the calculation of the date of exchange and the dates on which notices are given
pursuant to this paragraph (b), an Exchange Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail, postage prepaid, to
each Holder. Each Exchange Notice shall be addressed to each Holder of Trust
Securities at the address of such Holder appearing in the books and records of
the Trust. Each Exchange Notice shall state: (A) the exchange date; (B) the
aggregate Liquidation Amount and any unpaid Distributions (including any
Additional Amounts) on the Trust Securities to be exchanged and the aggregate
principal amount and any accrued interest on the Debentures to be exchanged
therefor; (C) that on the exchange date the Trust Securities to be so
exchanged shall be exchanged for Debentures and that Distributions on the Trust
Securities so exchanged will cease to accumulate on and after said date; and (D)
the identity of the Conversion Agent, if any, and the place or places where
each Trust Certificate to be exchanged is to be surrendered in exchange for
Debentures. No defect in the Exchange Notice or in the mailing
24
thereof with respect to any Trust Security shall affect the validity of the
exchange proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding Preferred Securities
are to be exchanged, then, on the exchange date, (i) if all of the Outstanding
Preferred Securities are represented by Definitive Preferred Securities
Certificates, the particular Preferred Securities to be exchanged will be
selected by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption or exchange on a pro rata basis, (ii) if all of
the Outstanding Preferred Securities are represented by Book-Entry Preferred
Securities Certificates, the Property Trustee shall provide for the selection
for exchange of a portion of the Global Certificate representing the Book-Entry
Preferred Securities Certificates on a pro rata basis and (iii) if Outstanding
Trust Securities are represented by both Definitive Preferred Securities
Certificates and Book-Entry Preferred Securities Certificates, the Property
Trustee shall select the portion of the Global Certificate representing the
Book-Entry Preferred Securities Certificates and the particular Outstanding
Preferred Securities represented by Definitive Preferred Securities Certificates
to be exchanged on a pro rata basis. In the case of clause (ii) or (iii) above,
the particular Book-Entry Preferred Securities Certificates to be exchanged
shall be selected in accordance with the applicable rules and procedures for the
Clearing Agency in whose name, or whose nominee's name, such global certificate
is then held. Any Preferred Securities Certificate that is to be exchanged only
in part shall be surrendered with due endorsement or by a written instrument of
transfer fully executed by the Holder thereof (or its attorney duly authorized
in writing) and the Trust shall prepare and deliver to such Holder, without
service charge, a new Preferred Securities Certificate or Certificates in
aggregate stated Liquidation Amount equal to, and in exchange for, the
unredeemed portion of the Preferred Securities Certificate so surrendered. The
Common Securities shall be exchanged in a similar manner.
(d) In the event of an exchange pursuant to this Section 4.4, on the date
fixed for any such exchange, (i) if the Preferred Securities are represented by
Book-Entry Preferred Securities Certificates, the Clearing Agency of its
nominee, as the record Holder of the Preferred Securities, will exchange through
the Conversion Agent the Global Certificate representing the Preferred
Securities to be exchanged for a registered Global Certificate or certificates
representing the Debentures to be delivered upon such exchange, (ii) if the
Preferred Securities are represented by Definitive Preferred Securities
Certificates, the certificates representing the Preferred Securities to be so
exchanged will be deemed to represent Debentures having a principal amount equal
to the aggregate stated Liquidation Amount of such Preferred Securities until
such certificates are presented to the Conversion Agent for exchange for
definitive certificates representing Debentures and (iii) all rights of the
Holders of the Preferred Securities so exchanged will cease, except for the
right of such Holders to receive Debentures. The Common Securities shall be
exchanged in a similar manner.
(e) Each Holder, by becoming a party to the Amended and Restated Trust
Agreement of the Old Trust and remaining a Holder pursuant to the Merger and by
operation of law, will be deemed, in accordance with Section 10.11 of this Trust
Agreement, to have agreed to be bound by these exchange provisions in regard to
the exchange of Trust Securities for Debentures pursuant to the terms described
above.
25
(f) Nothing in this Section 4.4 shall limit the requirement of the Trust to
withhold taxes pursuant to the terms of the Trust Securities or as set forth in
this Agreement or otherwise require the Property Trustee or the Trust to pay any
amounts on account of such withholdings.
SECTION 4.5. Subordination of Common Securities. Payment of Distributions
(including Additional Amounts, if applicable) on, and the Redemption Price of,
the Trust Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date an Event of Default shall have occurred and
be continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or the 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, 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.
SECTION 4.6. Payment Procedures. Payments 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, in accordance
with the Certificate Depositary Agreement on the applicable Distribution Dates.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
SECTION 4.7. Tax Returns and Reports. The Administrative Trustees shall
prepare (or cause to be prepared), at the Depositor'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 or
filed) Form 1041 or the appropriate Internal Revenue Service form required to be
filed in respect of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each Securityholder a
Form 1099 or the appropriate Internal Revenue Service form required to be
furnished to such Securityholder or the information required to be provided on
such form. The Administrative Trustees shall provide the Depositor and the
Property Trustee with a copy of all such returns, reports and schedules promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust. Upon receipt
under the Debentures of Additional Sums, the Property Trustee, upon receipt of
written notice from the Depositor or the Administrative Trustees, shall promptly
pay from such Additional Sums 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.
26
SECTION 4.9. Payments under Indenture. Any amount payable hereunder to
any Holder of Preferred Securities (and any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (or Owner) has
directly received pursuant to Section 5.8 of the Indenture in accordance with
the terms of Section 6.8 hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the formation of the Trust and until
the assumption by the Trust of all of the duties and obligations of the Old
Trust under the Trust Securities, no Trust Securities were Outstanding, and the
Depositor was the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates. The Preferred Securities
Certificates shall be issued in minimum denominations of $50 Liquidation Amount
and integral multiples of $50 in excess thereof, and the Common Securities
Certificates shall be issued in denominations of $50 Liquidation Amount and
integral multiples thereof. The consideration received by the Trust for the
issuance of the Trust Securities shall constitute a contribution to the capital
of the Trust and shall not constitute a loan to the Trust. Preferred Securities
initially sold by the Old Trust to qualified institutional buyers in reliance on
Rule 144A under the Securities Act ("Rule 144A Preferred Securities") were
represented by one or more certificates in registered, global form
(collectively, the "Restricted Global Certificate"). Preferred Securities
initially sold by the Old Trust in off-shore transactions in reliance on
Regulation S ("Regulation S Preferred Securities") were represented by one or
more certificates in registered, global form (collectively, the "Regulation S
Global Certificate" and, together with the Restricted Global Certificate, the
"Global Certificates"). Preferred Securities initially transferred, in
accordance with Section 5.4, to institutional accredited investors in a manner
exempt from the registration requirements of the Securities Act will be
exchanged for Preferred Securities in registered, certificated form (the
"Certificated Preferred Securities"). Trust Securities Certificates issued by
the Old Trust shall represent Trust Securities of the Trust and need not be
reissued by the Trust. Except as set forth in the preceding sentence, the Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee and authenticated by
the Property 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, or the Old
Trust, as the case may be, shall be validly issued and entitled to the benefit
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 Section 5.4.
SECTION 5.3. Delivery of Trust Securities Certificates. On the Closing
Date, the administrative trustees of the Old Trust caused 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 and delivered to or upon the written
order of the Depositor's predecessor, signed by its Chairman of the
27
Board, any Vice Chairman, its President, any Senior Vice President or any Vice
President, Treasurer or Assistant Treasurer or Controller without further
corporate action by the Depositor's predecessor, in authorized denominations. A
Trust Security Certificate shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee. The signature
shall be conclusive evidence that the Trust Security Certificate has been
authenticated under this Trust Agreement. Upon a written order of the Trust
signed by one Administrative Trustee, the Property Trustee shall authenticate
the Trust Security Certificates for original issue. The Property Trustee may
appoint an authenticating agent acceptable to the Administrative Trustees to
authenticate Trust Security Certificates. An authenticating agent may
authenticate Trust Security Certificates 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 Depositor or an Affiliate
with respect to the authentication of Trust Securities. Notwithstanding the
foregoing, Trust Securities Certificates issued by the Old Trust shall represent
Trust Securities of the Trust and need not be reissued by the Trust.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer.
(a) The Securities Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.8, a Securities Register in which,
subject to such reasonable regulations as it may prescribe, the Securities
Registrar shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.10 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The Property
Trustee shall be the initial Securities Registrar. Subject to the other
provisions of this Trust Agreement regarding restrictions on transfer, upon
surrender for registration of transfer of any Preferred Security at an office or
agency of the Depositor designated pursuant to Section 5.8 for such purpose, the
Depositor shall execute, and the Property Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Preferred Securities of any authorized denominations and of a like aggregate
principal amount and bearing such restrictive legends as may be required by this
Trust Agreement. At the option of the Holder, and subject to the other
provisions of this Section 5.4, Preferred Securities may be exchanged for other
Preferred Securities of any authorized denomination and of a like Liquidation
Amount, upon surrender of the Preferred Securities to be exchanged at any such
office or agency. Whenever any Preferred Securities are so surrendered for
exchange, the Depositor shall execute, and the Property Trustee shall
authenticate and deliver, the Preferred Securities which the Holder making the
exchange is entitled to receive. All Preferred Securities issued upon any
registration of transfer or exchange of Preferred Securities shall be the valid
obligations of the Depositor, evidencing the same debt, and entitled to the same
benefits under this Trust Agreement, as the Securities surrendered upon such
registration of transfer or exchange. Every Preferred Security presented or
surrendered for registration of transfer or for exchange shall (if so requested
by the Depositor or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Depositor and the Securities Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing. No service charge shall be made for any
registration of transfer or exchange of Preferred Securities Certificates, but
28
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.
(b) Certain Transfers and Exchanges. Notwithstanding any other provision
of this Trust Agreement or the Preferred Securities, transfers and exchanges of
Preferred Securities and beneficial interests in a Global Certificate of the
kinds specified in this Section 5.4(b) shall be made only in accordance with
this Section 5.4(b).
(i) Restricted Global Certificate to Regulation S Global Certificate.
If the owner of a beneficial interest in the Restricted Global Certificate
wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Regulation S
Global Certificate, such transfer may be effected in accordance with the
provisions of this Clause (b)(i) and Clause (b)(vii) below and subject to
the Applicable Procedures. Upon receipt by the Property Trustee, as
Securities Registrar, of (A) an order given by the Clearing Agency or its
authorized representative directing that a beneficial interest in the
Regulation S Global Certificate in a specified principal amount be credited
to a specified participant's account and that a beneficial interest in the
Restricted Global Certificate in an equal principal amount be debited from
another specified participant's account and (B) a Regulation S Certificate,
satisfactory to the Property Trustee and duly executed by the owner of such
beneficial interest in the Restricted Global Certificate or his attorney
duly authorized in writing, then the Property Trustee, as Securities
Registrar but subject to Clause (b)(vii) below, shall reduce the share
number of the Restricted Global Certificate and increase the share number
of the Regulation S Global Certificate by such specified principal amount
as provided in Section 5.11(b).
(ii) Regulation S Global Certificate to Restricted Global Certificate.
If the owner of a beneficial interest in the Regulation S Global
Certificate wishes at any time to transfer such interest to a Person who
wishes to acquire the same in the form of a beneficial interest in the
Restricted Global Certificate, such transfer may be effected only in
accordance with this Clause (b)(ii) and subject to the Applicable
Procedures. Upon receipt by the Property Trustee, as Securities Registrar,
of (A) an order given by the Clearing Agency or its authorized
representative directing that a beneficial interest in the Restricted
Global Certificate in a specified principal amount be credited to a
specified participant's account and that a beneficial interest in the
Regulation S Global Certificate in an equal principal amount be debited
from another specified participant's account and (B) if such transfer is to
occur during the Restricted Period, a Restricted Securities Certificate,
satisfactory to the Property Trustee and duly executed by the owner of such
beneficial interest in the Regulation S Global Certificate or his attorney
duly authorized in writing, then the Property Trustee, as Securities
Registrar, shall reduce the principal amount of the Regulation S Global
Certificate and increase the principal amount of the Restricted Global
Certificate by such specified principal amount as provided in Section
5.11(b).
(iii) Restricted Non-Global Certificate to Restricted Global
Certificate or Regulation S Global Certificate. If the Holder of a
Restricted Security (other than a Global Certificate) wishes at any time to
transfer all or any portion of such Restricted Security to a
29
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Certificate or the Regulation S Global
Certificate, such transfer may be effected only in accordance with the
provisions of this Clause (b)(iii) and Clause (b)(vii) below and subject to
the Applicable Procedures. Upon receipt by the Property Trustee, as
Securities Registrar, of (A) such Restricted Security as provided in
Section 5.4(a) and instructions satisfactory to the Property Trustee
directing that a beneficial interest in the Restricted Global Certificate
or Regulation S Global Certificate in a specified principal amount not
greater than the share amount of such Preferred Security be credited to a
specified participant's account and (B) a Restricted Securities
Certificate, if the specified account is to be credited with a beneficial
interest in the Restricted Global Certificate, or a Regulation S
Certificate, if the specified account is to be credited with a beneficial
interest in the Regulation S Global Certificate, in either case
satisfactory to the Property Trustee and duly executed by such Holder or
his attorney duly authorized in writing, then the Property Trustee, as
Securities Registrar but subject to Clause (b)(vii) below, shall cancel
such Restricted Security (and issue a new Restricted Security in respect of
any untransferred portion thereof) as provided in Section 5.4(a) and
increase the principal amount of the Restricted Global Certificate or the
Regulation S Global Certificate, as the case may be, by the specified
principal amount as provided in Section 5.11(b).
(iv) Regulation S Non-Global Certificate to Restricted Global
Certificate or Regulation S Global Certificate. If the Holder of a
Regulation S Preferred Security (other than a Global Certificate) wishes at
any time to transfer all or any portion of such Regulation S Security to a
Person who wishes to acquire the same in the form of a beneficial interest
in the Restricted Global Certificate or the Regulation S Global
Certificate, such transfer may be effected only in accordance with this
Clause (b)(iv) and Clause (b)(vii) below and subject to the Applicable
Procedures. Upon receipt by the Property Trustee, as Securities Registrar,
of (A) such Regulation S Security as provided in Section 5.4(a) and
instructions satisfactory to the Property Trustee directing that a
beneficial interest in the Restricted Global Certificate or Regulation S
Global Certificate in a specified share amount not greater than the share
amount of such Preferred Security be credited to a specified participant's
account and (B) if the transfer is to occur during the Restricted Period
and the specified account is to be credited with a beneficial interest in
the Restricted Global Certificate, a Restricted Securities Certificate
satisfactory to the Property Trustee and duly executed by such Holder or
his attorney duly authorized in writing then the Property Trustee, as
Securities Registrar but subject to Clause (b)(vii) below, shall cancel
such Regulation S Security (and issue a new Regulation S Security in
respect of any untransferred portion thereof) as provided in Section 5.4(a)
and increase the principal amount of the Restricted Global Certificate or
the Regulation S Global Certificate, as the case may be, by the specified
principal amount as provided in Section 5.11(b).
(v) Non-Global Certificate to Non-Global Certificate. A Security
that is not a Global Certificate may be transferred, in whole or in part,
to a Person who takes delivery in the form of another Security that is not
a Global Certificate as provided in Section 5.11, provided that, if the
Security to be transferred in whole or in part is a Restricted Security, or
is a Regulation S Preferred Security and the transfer is to occur during
the Restricted Period, then the Property Trustee shall have received (A) a
Restricted Securities Certificate,
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satisfactory to the Property Trustee and duly executed by the transferor
Holder or his attorney duly authorized in writing, in which case the
transferee Holder shall take delivery in the form of a Restricted Security,
or (B) a Regulation S Certificate, satisfactory to the Property Trustee and
duly executed by the transferor Holder or his attorney duly authorized in
writing, in which case the transferee Holder shall take delivery in the
form of a Regulation S Preferred Security (subject in every case to Section
5.4(c)).
(vi) Exchanges between Global Certificate and Non-Global
Certificate. A beneficial interest in a Global Certificate may be exchanged
for a Preferred Security that is not a Global Certificate as provided in
Section 5.11 to an institution that is an accredited investor within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the
Securities Act of 1933, as amended, provided that, if such interest is a
beneficial interest in the Restricted Global Certificate, or if such
interest is a beneficial interest in the Regulation S Global Certificate
and such exchange is to occur during the Restricted Period, then such
interest shall be exchanged for a Restricted Security (subject in each case
to Section 5.4(c)). A Preferred Security that is not a Global Certificate
may be exchanged for a beneficial interest in a Global Certificate only if
(A) such exchange occurs in connection with a transfer effected in
accordance with Clause (b)(iii) or (iv) above or (B) such Security is a
Regulation S Preferred Security and such exchange occurs after the
Restricted Period.
(vii) Regulation S Global Certificate to be Held Through Euroclear or
Cedel during Restricted Period. The Depositor shall use its best efforts
to cause the Clearing Agency to ensure that, until the expiration of the
Restricted Period, beneficial interests in the Regulation S Global
Certificate may be held only in or through accounts maintained at the
Clearing Agency by Euroclear or Cedel (or by participants acting for the
account thereof), and no person shall be entitled to effect any transfer or
exchange that would result in any such interest being held otherwise than
in or through such an account; provided that this Clause (b)(vii) shall not
prohibit any transfer or exchange of such an interest in accordance with
Clause (b)(ii) or (vi) above.
(c) Securities Act Legends. Rule 144A Securities, Certificated Preferred
Securities and their respective Successor Securities shall bear a Restricted
Securities Legend as set forth in Section 5.15, and the Regulation S Preferred
Securities and their Successor Securities shall bear a Regulation S Legend,
subject to the following:
(i) subject to the following Clauses of this Section 5.4(c), a
Preferred Security or any portion thereof which is exchanged, upon transfer
or otherwise, for a Global Certificate or any portion thereof shall bear
the Securities Act Legend borne by such Global Certificate while
represented thereby;
(ii) subject to the following Clauses of this Section 5.4(c), a new
Preferred Security which is not a Global Certificate and is issued in
exchange for another Preferred Security (including, a Global Certificate)
or any portion thereof, upon transfer or otherwise, shall bear the
Securities Act Legend borne by such other Preferred Security, provided
that, if such new Preferred Security is required pursuant to Section
5.4(b)(v) or (vi) to be issued in the form of a Restricted Security, it
shall bear a Restricted Securities Legend and, if such
31
new Preferred Security is so required to be issued in the form of a
Regulation S Preferred Security, it shall bear a Regulation S Legend;
(iii) Any Preferred Securities which are sold or otherwise disposed
of pursuant to an effective registration statement under the Securities Act
(including the Shelf Registration Statement), together with their Successor
Securities shall not bear a Securities Act Legend; the Depositor shall
inform the Property Trustee in writing of the effective date of any such
registration statement registering the Preferred Securities under the
Securities Act and shall notify the Property Trustee at any time when
prospectuses may not be delivered with respect to Preferred Securities to
be sold pursuant to such registration statement. The Property Trustee shall
not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the aforementioned registration statement;
(iv) at any time after the Preferred Securities may be freely
transferred without registration under the Securities Act or without being
subject to transfer restrictions pursuant to the Securities Act, a new
Preferred Security which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Preferred Security (other than a
Global Certificate) or any portion thereof which bears such a legend if the
Property Trustee has received an Unrestricted Securities Certificate,
satisfactory to the Property Trustee and duly executed by the Holder of
such legended Preferred Security or his attorney duly authorized in
writing, and after such date and receipt of such certificate, the Property
Trustee shall authenticate and deliver such a new Preferred Security in
exchange for or in lieu of such other Preferred Security as provided in
this Article 5;
(v) a new Preferred Security which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Preferred Security
(other than a Global Certificate) or any portion thereof which bears such a
legend if, in the Depositor's judgment, placing such a legend upon such new
Preferred Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Property Trustee,
at the direction of the Depositor, shall authenticate and deliver such a
new Preferred Security as provided in this Article 5; and
(vi) notwithstanding the foregoing provisions of this Section
5.4(c), a Successor Security of a Preferred Securities that does not bear a
particular form of Securities Act Legend shall not bear such form of legend
unless the Depositor has reasonable cause to believe that such Successor
Security is a "restricted security" within the meaning of Rule 144, in
which case the Property Trustee, at the direction of the Depositor, shall
authenticate and deliver a new Preferred Security bearing a Restricted
Securities Legend in exchange for such Successor Security as provided in
this Article 5.
SECTION 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
32
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 authentication and 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 denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, 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 duplicative Trust Securities Certificate issued pursuant to this
Section shall constitute conclusive evidence of an undivided beneficial interest
in the assets of the Trust, as if originally issued, whether or not the lost,
stolen or destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders. The Property Trustee 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 Property Trustee nor the
Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses. The
Administrative Trustees or the Depositor shall furnish or cause to be furnished
(unless the Property Trustee is acting as Securities Registrar with respect to
the Trust Securities under the Trust Agreement) 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 (a) to the Property Trustee,
quarterly at least 5 Business Days before each Distribution Date, and (b) to the
Property Trustee, promptly after receipt by the Depositor 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 Trustees or
the Depositor 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, except to the extent Section 3819 of the
Delaware Business Trust Act would require greater access to such information, in
which case the latter shall apply. Each Holder, by receiving and holding a Trust
Securities Certificate, and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency. The Securities Registrar
shall maintain in The City of New York an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served. The Securities Registrar initially designates One State Street, 11th
Floor, New York, New York 10004, Attention: Corporate Trust Department, as its
principal corporate trust office for such purposes. The Securities Registrar
shall give prompt written notice to the Depositor and to the
33
Securityholders of any change in the location of the Securities Register or any
such office or agency.
SECTION 5.9. Appointment of Paying Agent. In the event that the Preferred
Securities are not in book-entry form only, the Trust shall maintain in the
Borough of Manhattan, City of New York, an office or agency (the "Paying Agent")
where the Preferred Securities may be presented for payment. 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 and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee and the
Depositor. 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 Depositor to act as Paying Agent
(which shall be a bank or trust company). Each successor Paying Agent or any
additional Paying Agent shall agree with the Trustees that, as Paying Agent,
such successor Paying Agent or additional Paying Agent will hold all sums, if
any, held by it for payment to the Securityholders in trust for the benefit of
the Securityholders entitled thereto until such sums shall be paid to each
Securityholder. 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, 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.
SECTION 5.10. Ownership of Common Securities by Depositor. On the Closing
Date provided for in Section 2.5, the Depositor's predecessor acquired
beneficial and record ownership of the Common Securities. On or around the date
hereof, the Depositor acquired such Common Securities by operation of law
pursuant to a merger of Depositor's predecessor with and into the Depositor. To
the fullest extent permitted by law, any attempted transfer of the Common
Securities other than further to the aforementioned merger of Depositor's
predecessor with and into the Depositor, shall be void. The administrative
trustees of the Old Trust shall cause each Common Securities Certificate issued
to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
SECTION 5.11. Global Securities; Non-Global Securities; Common Securities
Certificate.
(a) Each Global Certificate authenticated under this Trust Agreement shall
be registered in the name of the Clearing Agency designated by the Depositor for
such Global Certificate or a nominee thereof and delivered to such Clearing
Agency or a nominee thereof or custodian therefor,
34
and each such Global Certificate shall constitute a Preferred Security for all
purposes of this Trust Agreement.
(b) If a Global Certificate is to be exchanged for Certificated Preferred
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Clearing Agency, its nominee or custodian to the Property Trustee, as Securities
Registrar, for exchange or cancellation as provided in this Article 5. If any
Global Certificate is to be exchanged for Certificated Preferred Securities or
cancelled in part, or if another Preferred Security is to be exchanged in whole
or in part for a beneficial interest in any Global Certificate, in each case, as
provided in Section 5.4, then either (i) such Global Certificate shall be so
surrendered for exchange or cancellation as provided in this Article 5 or (ii)
the principal 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 principal
amount of such Certificated Preferred Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Property Trustee, as Securities Registrar,
whereupon the Property Trustee, in accordance with the Applicable Procedures,
shall instruct the Clearing Agency or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Certificate, the Property Trustee shall, subject to Section 5.4 and
as otherwise provided in this Article 5, authenticate and deliver any Preferred
Securities issuable in exchange for such Global Certificate (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Clearing Agency or its authorized representative. Upon the
request of the Property Trustee in connection with the occurrence of any of the
events specified in the preceding paragraph, the Depositor shall promptly make
available to the Property Trustee a reasonable supply of Preferred Securities
that are not in the form of Global Certificates. The Property Trustee shall be
entitled to rely upon any order, direction or request of the Clearing Agency or
its authorized representative which is given or made pursuant to this Article 5
if such order, direction or request is given or made in accordance with the
Applicable Procedures.
(c) Every Preferred Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Certificate or any
portion thereof, whether pursuant to this Article 5 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Certificate,
unless such Preferred Security is registered in the name of a Person other than
the Clearing Agency for such Global Certificate or a nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner of a Global
Certificate, shall be the holder of such Global Certificate for all purposes
under the Trust Agreement and the Preferred Securities, and owners of beneficial
interests in a Global Certificate shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such Owner's beneficial interest in a
Global Certificate will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or its
nominee or its participants and such owners of beneficial interests in a Global
Certificate will not be considered the owners or holders of such Global
Certificate for any purpose of this Trust Agreement or the Preferred Securities.
(e) A single Common Securities Certificate representing the Common
Securities was issued to Depositor's predecessor and shall be retained by the
Depositor in the form of a definitive Common Securities Certificate.
35
SECTION 5.12. Notices to Clearing Agency. To the extent that a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to provide notices directly to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
Notwithstanding any other provision in this Trust Agreement other than as
provided for in Section 5.4(b)(vi), no Global Certificate may be exchanged in
whole or in part for Preferred Securities registered, and no transfer of a
Global Certificate in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Certificate or a nominee
thereof unless (i) such Clearing Agency (A) has notified the Depositor that it
is unwilling or unable to continue as Clearing Agency for such Global
Certificate or (B) has ceased to be a clearing agency registered as such under
the Securities Exchange Act of 1934, as amended, and in either case the Trust
and the Depositor thereupon fails to appoint a successor Clearing Agency, (ii)
the Trust and the Depositor, at their option, notify the Property Trustee in
writing that it elects to cause the issuance of the Preferred Securities in
certificated form or (iii) there shall have occurred and be continuing an Event
of Default or any event which after notice or lapse of time or both would be an
Event of Default. In all cases, Certificated Preferred Securities delivered in
exchange for any Global Certificate or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the Clearing Agency (in accordance with its customary
procedures).
SECTION 5.14. Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.9, 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 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 and,
when issued and delivered to Securityholders against payment of the purchase
price therefor, will be fully paid and nonassessable by the Trust. The Holders
of the Trust Securities, in their capacities as such, shall be entitled to the
same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
SECTION 5.15. Restrictive Legends. (a) The Restricted Global Certificate
and the Certificated Preferred Securities shall bear the following legend (the
"Restricted Securities Legend") unless the Depositor determines otherwise in
accordance with applicable law:
"THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE UPON THEIR
CONVERSION HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) BY ANY INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT, (1) TO A PERSON WHO
THE TRANSFEROR REASONABLY
36
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR (B) BY ANY INITIAL INVESTOR
THAT IS A QUALIFIED INSTITUTIONAL BUYER OR BY ANY SUBSEQUENT INVESTOR, AS SET
FORTH IN CLAUSE (A) ABOVE OR TO AN INSTITUTION THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE (A)
AND (B), IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS. SECURITIES OWNED BY AN INITIAL INVESTOR
THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD IN BOOK-ENTRY FORM
AND MAY NOT BE TRANSFERRED WITHOUT CERTIFICATION THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS, AS PROVIDED IN THE TRUST AGREEMENT REFERRED TO
BELOW."
(b) The Regulation S Preferred Securities shall bear the following legend
(the "Regulation S Legend") unless the Depositor determines otherwise in
accordance with the applicable law:
"THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE UPON CONVERSION
THEREOF (COLLECTIVELY, THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON, UNLESS SUCH SECURITIES
ARE REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF IS AVAILABLE."
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.9 and 10.2 and in the
Indenture and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) Subject to Section 8.2 hereof, if an Event of Default with respect to
the Preferred Securities has occurred and been subsequently cured, waived or
otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof shall apply.
During (x) the period commencing on the date
37
of the occurrence of an Event of Default with respect to the Preferred
Securities and ending on the date when such Event of Default is cured, waived or
otherwise eliminated, or (y) any period not described in either the preceding
sentence or the preceding clause (x), the provisions of Section 6.1(b)(i) shall
apply.
(i) The holders of a majority in aggregate liquidation amount of the
Preferred Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee or to exercise any trust or power conferred upon the Property
Trustee under the Trust Agreement, including the right to direct the
Property Trustee to exercise the remedies available to it as a holder of
the Debentures but excluding the right to direct the Property Trustee to
consent to an amendment, modification or termination of the Indenture
(which shall be as provided below). So long as any Debentures are held by
the Property Trustee, the Trustees shall not (A) 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, (B) waive any past
default which is waivable under Section 5.13 of the Indenture, (C) exercise
any right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (D) 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 a majority in aggregate Liquidation Amount of
all Outstanding Preferred Securities (except in the case of clause (D),
which consent, in the event that no Event of Default shall occur and be
continuing, shall be of the Holders of all Trust Securities, voting
together as a single class); provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior written consent of each Holder of Preferred Securities.
The Trustees shall not revoke any action previously authorized or approved
by a vote of the Holders of the Preferred Securities, except by a
subsequent vote of the Holders of the Preferred Securities. The Property
Trustee shall notify all Holders of record of the Preferred Securities of
any notice of default received from the Debenture Trustee with respect to
the Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation or
partnership for United States Federal income tax purposes on account of
such action.
(ii) Subject to Section 8.2 of this Trust Agreement and only after the
Event of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated the holders of a majority in aggregate
liquidation amount of the Common Securities will have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or to exercise any trust or power
conferred upon the Property Trustee under the Trust Agreement, including
the right to direct the Property Trustee to exercise the remedies available
to it as a holder of the Debentures but excluding the right to direct the
Property Trustee to consent to an amendment, modification or termination of
the Indenture (which shall be as provided
38
below). So long as any Debentures are held by the Property Trustee, the
Trustees shall not (A) 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, (B) waive any past default which is waivable under Section 5.13
of the Indenture, (C) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable or (D)
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 a majority in
aggregate Liquidation Amount of all Common Securities (except in the case
of clause (D), which consent, in the event that no Event of Default shall
occur and be continuing, shall be of the Holders of all Trust Securities,
voting together as a single class); provided, however, that where a consent
under the Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior written consent of each Holder of Common Securities. The
Trustees shall not revoke any action previously authorized or approved by a
vote of the Holders of the Common Securities, except by a subsequent vote
of the Holders of the Common Securities. The Property Trustee shall notify
all Holders of record of the Common 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 Common
Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership 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 the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities as a class will
be entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of a majority in
aggregate Liquidation Amount of the Outstanding Preferred Securities.
SECTION 6.2. Notice of Meetings. Notice of all meetings of the Holders of
the Preferred Securities, stating the time, place and purpose of the meeting,
shall be given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at its 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.
SECTION 6.3. Meetings of Preferred Security-holders. No annual meeting of
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
the Holders of Preferred Securities to vote on any matters as to which such
Holders are entitled to vote. Holders of record of 50% of the Preferred
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders. If a
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a quorum is present at a meeting, an affirmative vote by the Holders of record
of Preferred Securities present, in person or by proxy, holding more than a
majority of the Preferred Securities (based upon their Liquidation Amount) held
by Holders of record of Preferred Securities present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights. Securityholders shall be entitled to one vote
for each $50 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by the Depositor, the Trustees or any
affiliate of any Trustee shall, for purposes of such vote or consent, be treated
as if such Preferred Securities were not outstanding.
SECTION 6.5. Proxies, Etc. At any meeting of Securityholders, any
Securityholders entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Securityholders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or represented 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.
SECTION 6.6 Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than a majority of all Outstanding Trust Securities
(based upon their Liquidation Amount) entitled to vote in respect of such action
(or such larger proportion thereof as shall be required by any express provision
of this Trust Agreement) shall consent to the action in writing.
SECTION 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 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 Distributions or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
SECTION 6.8. Acts of Securityholders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Securityholders or Owners may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders or Owners in person or by
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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 evidence thereby) are herein sometimes referred
to as the "Act" of the Securityholders or Owners signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Trust
Agreement and (subject to Section 8.1) conclusive in favor of the Trustees, if
made in the manner provided in this Section. The fact and date of the execution
by any Person of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgements 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. The ownership of Preferred Securities shall be proved by the
Securities Register. Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security. Without
limiting the foregoing, a Securityholder entitled hereunder to take any action
hereunder with regard to any particular Trust Security may do so with regard to
all or any part of the Liquidation Amount of such Trust Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such Liquidation Amount. If any dispute shall
arise between the Securityholders and the Administrative Trustees or among such
Securityholders or Trustees with respect to the authenticity, validity or
binding nature of any request, demand, authorization, direction, consent, waiver
or other Act of such Securityholder or Trustee under this Article 6, then the
determination of such matter by the Property Trustee shall be conclusive with
respect to such matter. Upon the occurrence and continuation of an Event of
Default, the holders of Preferred Securities shall rely on the enforcement by
the Property Trustee of its rights as holder of the Debentures against the
Depositor. If the Property Trustee fails to enforce its rights as holder of the
Debentures after a request therefor by a holder of Preferred Securities, such
holder may proceed to enforce such rights directly against the Depositor.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Depositor to pay
interest or principal on the Debentures on the date such interest or principal
is otherwise payable (or in the case of redemption, on the Redemption Date),
then a holder of Preferred Securities shall have the right to institute a
proceeding directly against the Depositor, for enforcement of payment to such
holder of the principal amount of or interest on Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such holder after the respective due date specified in the Debentures (a "Direct
Action"). In connection with any such Direct Action, the rights of the Depositor
will be subrogated to the rights of any holder of the Preferred Securities to
the extent of any payment made by the Depositor to such holder of Preferred
Securities as a result of such Direct Action. A Securityholder may institute a
legal proceeding directly against the Depositor under the Guarantee to enforce
its rights under the
41
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee (as defined in the Guarantee), the Trust or any Person or entity.
SECTION 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 by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that (each such representation
and warranty made by the Property Trustee and the Delaware Trustee being made
only with respect to itself):
(a) the Property Trustee is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of New York;
(b) the Delaware Trustee is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(c) each of the Property Trustee and the Delaware Trustee 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;
(d) this Trust Agreement has been duly authorized, executed and delivered
by each of the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of the Property Trustee and 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; (e) the execution, delivery and performance by
each of the Property Trustee and the Delaware Trustee of this Trust Agreement
have been duly authorized by all necessary corporate or other action on the part
of the Property Trustee and the Delaware Trustee and does not require any
approval of stockholders of the Property Trustee or the Delaware Trustee and
such execution, delivery and performance will not (i) violate either of the
Property Trustee's or the Delaware Trustee'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 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 Delaware, as the case may be, governing the
banking, corporate, or
42
trust powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(f) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) 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, corporate or trust powers of the
Property Trustee or the Delaware Trustee, as the case may be, under the laws of
the United States or the State of Delaware;
(g) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee 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 Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Depositor. The Depositor
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 will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
ARTICLE 8
THE TRUSTEES
SECTION 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. The Property Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties and obligations as are
specifically set forth in this Trust Agreement and the Trust Indenture Act and
no implied covenants shall be read into this Trust Agreement against the
Property Trustee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 8.2) of which a
43
responsible officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such rights and powers vested in it by this Trust
Agreement and the Trust Indenture Act, and use the same degree of care and skill
in its exercise, as a prudent individual would exercise or use under the
circumstances in the conduct of his or her own affairs. 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. 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. Nothing in this Trust Agreement shall be construed
to release the Administrative Trustees from liability for their own grossly
negligent action, their own grossly negligent failure to act, or their own
willful misconduct. To the extent that, at law or in equity, an Administrative
Trustee has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to the Securityholders, such Administrative Trustee shall not be
liable to the Trust or to any Securityholder for such Administrative 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 Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) 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 a majority 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;
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(iii) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such property as fiduciary assets, subject to
the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) The Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor
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
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
SECTION 8.2. Notice of Defaults.
(a) Within ten 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 holders of Preferred Securities, the Administrative Trustees and
the Depositor, unless such Event of Default shall have been cured or waived,
provided that, except for a default in the payment of principal of (or premium,
if any) or interest on any of the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as the Board of Directors,
the executive committee, or a trust committee of directors and/or responsible
officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Preferred Securities.
(b) Within ten days after the receipt of notice of the Depositor's exercise
of its right to extend the interest payment period for the Debentures pursuant
to the Indenture, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the Securityholders,
unless such exercise shall have been revoked.
(c) The Holders of a majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default in respect of the Preferred Securities and its
consequences, provided that, if the underlying Debenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default under
the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Trust
Agreement may only be waived by the vote of the Holders of the same
proportion in liquidation amount of the Preferred Securities that the
relevant
45
Super Majority represents of the aggregate principal amount of the
Debentures outstanding. The provisions of Section 6.1(b) and this Section
8.2(c) shall be in lieu of (S) 316(a)(1)(B) of the Trust Indenture Act and
such (S) 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Trust Agreement and the Preferred Securities, as
permitted by the Trust Indenture Act. Upon such waiver, any such default
shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured,
for every purpose of this Trust Agreement, but no such waiver shall extend
to any subsequent or other default or an Event of Default with respect to
the Preferred Securities or impair any right consequent thereon. Any waiver
by the Holders of the Preferred Securities of an Event of Default with
respect to the Preferred Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this Trust
Agreement without any further act, vote, or consent of the Holders of the
Common Securities.
(d) The Holders of a majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences provided that, if the underlying Debenture
Event of Default:
(i) is not waivable under the Indenture, except where the Holders of
the Common Securities are deemed to have waived such Event of Default under
the Declaration as provided below in this Section 8.2(d), the Event of
Default under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be waived,
except where the Holders of the Common Securities are deemed to have waived
such Event of Default under the Trust Agreement as provided below in this
Section 8.2(d), the Event of Default under the Trust Agreement may only be
waived by the vote of the Holders of the same proportion in liquidation
amount of the Common Securities that the relevant Super Majority represents
of the aggregate principal amount of the Debentures outstanding; provided
further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to
the Common Securities and its consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting
solely on behalf of the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the
Property Trustee in accordance with the terms of the Securities. The
provisions of Section 6.1(b) and this Section 8.2(d) shall be in lieu of
(S)316(a)(1)(B) of the Trust Indenture Act and such (S)316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement
and the Preferred Securities, as permitted by the Trust Indenture Act.
Subject to the foregoing provisions of this Section 8.2(d), upon such
waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Trust Agreement, but no such waiver
shall extend to any subsequent or
46
other default or Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(e) A waiver of an Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the Preferred Securities, constitutes
a waiver of the corresponding Event of Default under this Trust Agreement. The
foregoing provisions of this Section 8.2(e) shall be in lieu of (S) 316(a)(1)(B)
of the Trust Indenture Act and such (S) 316(a)(1)(B) of the Trust Indenture Act
is hereby expressly excluded from this Trust Agreement and the Preferred
Securities, as permitted by the Trust Indenture Act.
SECTION 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 no Event of Default has occurred and is continuing and, (i) in
performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action or (ii) in construing
any of the provisions in this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the Holders of
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken 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 Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor 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 rely upon an Officers' Certificate and an Opinion of
Counsel which, upon receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
47
(e) the Property Trustee shall have no duty to accomplish any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice; and the Property Trustee shall have the right at
any time to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolutions, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by Holders of record of 25% or more of the
Preferred Securities (based upon their Liquidation Amount), 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 or an Affiliate, 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
48
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Trust Securities Certificates shall not be
taken as the statements of the Trustees, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities. Except as provided in the definition of
the term "Outstanding" in Article 1, 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 Section 8.8 and 8.12, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay the Trustees from time to time reasonable 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);
(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 its negligence
or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent
of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates (referred to herein as an "Indemnified Person") from and against
any loss, damage, liability, tax, penalty, expense or claim of any kind or
nature whatsoever incurred by such Indemnified Person by reason of the
creation, operation or termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Trust Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions; and
(d) no Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
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SECTION 8.7. 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, the combined capital and surplus of such person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a 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.
SECTION 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.
SECTION 8.9. Resignation and Removal; Appointment of Successor.
(a) Subject to Sections 8.9(b) and 8.9(c), Trustees (the "Relevant
Trustee") may be appointed or removed without cause at any time: (i) until the
issuance of any Trust Securities, by written instrument executed by the
Depositor; and (ii) after the issuance of any Securities, by vote of the Holders
of a majority in liquidation amount of the Common Securities voting as a class.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the qualifications
to act as a Property Trustee under Section 8.7 (a "Successor Property Trustee")
has been appointed and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Trust, the Depositor and
the removed Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the qualifications
to act as Delaware Trustee under Section 8.7 (a "Successor Delaware Trustee")
has been appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Depositor and
the removed Delaware Trustee.
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(d) A Trustee appointed to office shall hold office until his, her or its
successor shall have been appointed or until his, her or its death, removal,
resignation, dissolution or liquidation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
signed by the Trustee and delivered to the Depositor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(1) until a Successor Property Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
(2) until the assets of the Trust have been completely liquidated
and the proceeds thereof distributed to the holders of the Securities;
and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Depositor and
the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Property Trustee or Successor Delaware Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with Section
8.9(d).
(f) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 8.9
within 60 days after delivery pursuant to this Section 8.9 of an instrument
of resignation or removal, the Property Trustee or Delaware Trustee resigning or
being removed, as applicable, may petition any court of competent jurisdiction
for appointment of a Successor Property Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(h) 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 Depositor. 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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(i) 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 Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of the remaining Administrative Trustees
if there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or the Delaware Trustee, as the case may be, set
forth in Section 8.7).
(j) The indemnity provided to a Trustee under Section 8.6 shall survive any
Trustee's resignation or removal.
SECTION 8.10. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee; but, on the request of the
Depositor or the successor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Depositor or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and if the Property Trustee is the resigning Trustee shall duly assign, transfer
and deliver to the successor Trustee all property and money held by such
retiring Property Trustee hereunder. In case of the appointment hereunder of a
successor Relevant Trustee, the retiring Relevant Trustee and each successor
Relevant Trustee shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee and (b) shall add to
or change any of the provisions of this Trust Agreement as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Relevant Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; 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.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be. No
successor Relevant Trustee shall accept its appointment unless at the time of
such acceptance such successor Relevant Trustee shall be qualified and eligible
under this Article.
SECTION 8.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee
52
that is not a natural person may be merged or converted or with which it may be
consolidated, or any corporation 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 corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
SECTION 8.12. Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to 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 Depositor or Trust (or any such
other obligor).
SECTION 8.13. Reports by Property Trustee.
(a) To the extent required by the Trust Indenture Act, within 60 days after
December 31 of each year commencing with December 31, 1996 the Property Trustee
shall transmit to all Securityholders in accordance with Section 10.8 and to the
Depositor, a brief report dated as of such December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period
(or, in the case of the initial report, the period since the Closing Date)
ending with such December 31 or, if the Property Trustee has not complied
in any material respects with such obligations, a description of such
noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects
the Trust Securities.
(b) In addition, the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of such report shall, at the time of such transmissions to
Holders, be filed by the Property Trustee with each national securities exchange
or self-regulatory organization upon which the Trust Securities are listed, with
the Commission and with the Depositor.
SECTION 8.14. Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any)
53
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.
SECTION 8.15. Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee 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.
SECTION 8.16. 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 8.16(a), or if the
number of Trustees is increased pursuant to Section 8.16(a), a vacancy shall
occur.
(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 8.9, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Trust Agreement.
SECTION 8.17. 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), including any registration statement or amendment thereof filed with the
Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
54
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date. Unless earlier terminated,
the Trust shall automatically terminate on November 25, 2041 (the "Expiration
Date"), following the distribution of the Trust Property in accordance with
Section 9.4.
SECTION 9.2. Early Termination. The first to occur of any of the
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Depositor;
(b) the occurrence of a Special Event except in the case of a Tax Event
following which the Depositor has elected (i) to pay any Additional Sums (in
accordance with Section 4.4) such that the net amount received by Holders of
Preferred Securities in respect of Distributions are not reduced as a result of
such Tax Event and the Depositor has not revoked any such election or failed to
make such payments or (ii) to redeem all or some of the Debentures pursuant to
Section 4.4(a);
(c) the redemption, conversion or exchange of all of the Trust Securities;
(d) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction; and
(e) receipt by the Property Trustee of written notice from the Depositor at
any time (which direction is optional and wholly within the discretion of the
Depositor) of its intention to terminate the Trust and distribute the
Debentures in exchange for the Preferred Securities.
SECTION 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 all expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to the
Trust or the Securityholders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), (d) or (e)
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 an aggregate principal amount
of Debentures equal to the aggregate Liquidation Amount of Trust Securities held
by such Holder, 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
55
to each Holder of Trust Securities at such Holder's address as it appears in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Preferred Securities held by such Holder;
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 will no longer be deemed to be Outstanding, (ii)
the Clearing Agency or its nominee, as the record holder of such Trust
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (iii) any
Trust Securities Certificates not held by the Clearing Agency will be deemed to
represent an aggregate principal amount of Debentures equal to the aggregate
Liquidation Amount of Preferred Securities held by such Holders, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such Trust Securities until such certificates are presented to
the Property Trustee for transfer or reissuance.
(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 practicable, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding up or other
termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus accrued
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding-up or
termination, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of
56
the Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a Debenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities.
SECTION 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 body, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Property Trustee, the
Delaware Trustee or the Holders of the Preferred Securities, 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 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
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debentures,
(iii) the Successor Securities are listed, or any Successor Securities will be
listed 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 cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease the
Depositor 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 (other than with respect to any dilution of the Holder's interest in the
new entity), (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act,
and (c) following such merger, consolidation, amalgamation or replacement, the
Trust or such successor entity will be treated as a grantor trust for United
States Federal income tax purposes and (viii) the Depositor or any permitted
successor or assignee owns all of the Common Securities of such successor entity
and guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
aggregate Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Trust or the
57
successor entity to be classified as other than a grantor trust for United
States Federal income tax purposes.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 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.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Trust will be classified for United States
Federal income tax purposes as a grantor trust at all times that any Trust
Securities are Outstanding or to ensure that the Trust will not be required to
register as an "investment company" under the 1940 Act, or be classified as
other than a grantor trust for United States Federal income tax purposes, or
(iii) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Trust Agreement under the Trust Indenture
Act; provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any Securityholder,
and any amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Holders representing not less than a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding, acting as a single class, and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trustee's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from the
status of an "investment company" under the 1940 Act, provided, however, if any
amendment or proposal that would adversely affect the powers, preferences or
special rights of the Trust Securities, whether by way of amendment or
otherwise, would adversely affect only the Preferred Securities or only the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a majority in liquidation amount of such class of
Trust Securities.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance
58
with Section 6.3 or 6.6 hereof), 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 (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), 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
the status of an "investment company" under the 1940 Act or be classified as
other than a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(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 is in compliance with this
Trust Agreement.
SECTION 10.3. Separability. In case any provision in this Trust Agreement
or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND TRUSTEES WITH RESPECT
TO THIS TRUST AGREEMENT IN THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS
CONFLICT OF LAWS PRINCIPLES AND EXCLUDING SECTIONS 3540 AND 3561 OF TITLE 12
THEREOF.
SECTION 10.5. Payments Due on Non-Business Day. If the date fixed for any
payment on any Trust Security shall be a day which is not a Business Day, then
such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day except as otherwise provided in Section
4.1(a) and Section 4.2(d)), with the same force and effect as though made on the
date fixed for such payment, and no interest shall accrue thereon for the period
after such date.
SECTION 10.6. Successors. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee, including
59
any successor by operation of law. Except in connection with a consolidation,
merger or sale involving the Depositor that is permitted under Article 8 of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION 10.7. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands. Any report, notice, demand or
other communications which by any provision of this Trust Agreement is required
or permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder's name and address may appear on the
Securities Register; and (b) in the case of the Holder of the Common Securities.
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, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee, to IBJ
Schroder Bank & Trust Company, One State Street, 11th Floor, New York, New York
10004, Attention: Corporate Trust & Agency Department, (b) with respect to the
Delaware Trustee, to Delaware Trust Capital Management, Inc., 300 Delaware
Avenue, 9th Floor, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration, with a copy of any such notice to the Property Trustee at its
address above, and (c) with respect to the Administrative Trustees, to them at
the address for notices to the Depositor, marked "Attention: Secretary". Such
notice, demand or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
SECTION 10.9. Agreement Not to Petition. Each of the Trustees and the
Depositor agrees 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
9, it 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)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that, at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
60
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is the trustee for
the purposes of the Trust Indenture Act.
(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.
SECTION 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 BENEFICIAL OWNER (INCLUDING THE
ACCEPTANCE OF ANY DISTRIBUTION ON OR AFTER THE DATE HEREOF), 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 SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
SECTION 10.12. Counterparts. This Trust Agreement may contain more than
one counterpart of the signature page and this Trust Agreement may be executed
by the affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though
all of the signers had signed a single signature page.
ARTICLE 11
REGISTRATION RIGHTS
61
SECTION 11.1. Registration Rights. The Holders of the Preferred
Securities, the Debentures and the Guarantee and the shares of Common Stock of
the Depositor issuable upon conversion of the Debentures and/or the Preferred
Securities (collectively, the "Registrable Securities") are entitled to the
benefits of a Registration Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
HMC MERGER CORPORATION
as Depositor
By:______________________________
Name:
Title:
IBJ SCHRODER BANK & TRUST COMPANY,
as Property Trustee
By:______________________________
Name:
Title:
DELAWARE TRUST CAPITAL MANAGEMENT,
INC., as Delaware Trustee
By:______________________________
Name:
Title:
_________________________________
Robert E. Parsons, Jr.,
as Administrative Trustee
_________________________________
Ed Walter
as Administrative Trustee
62
_________________________________
Christopher G. Townsend,
as Administrative Trustee
63
EXHIBIT A
CERTIFICATE OF TRUST
OF
HOST MARRIOTT FINANCIAL TRUST
A-1
EXHIBIT B
FORM OF CERTIFICATE
DEPOSITARY AGREEMENT
B-1
EXHIBIT C
THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE UPON THEIR
CONVERSION HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) BY ANY INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT, (1) TO A PERSON WHO
THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER ACQUIRING
FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION COMPLYING WITH RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR (B) BY ANY INITIAL INVESTOR THAT IS A QUALIFIED INSTITUTIONAL BUYER OR BY ANY
SUBSEQUENT INVESTOR, AS SET FORTH IN CLAUSE (A) ABOVE OR TO AN INSTITUTION THAT
IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7)
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND, IN EACH CASE (A) AND (B), IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. SECURITIES OWNED BY
AN INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY NOT BE HELD
IN BOOK-ENTRY FORM AND MAY NOT BE TRANSFERRED WITHOUT CERTIFICATION THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS, AS PROVIDED IN THE TRUST
AGREEMENT REFERRED TO BELOW.
C-1
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
Host Marriott Financial Trust
Common Securities
(liquidation amount $50 per Common Security)
Host Marriott Financial Trust, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Host Marriott
Corporation (the "Holder") is the registered owner of _________ common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust (the "Common Securities"). In accordance with Section 5.10
of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of December 2, 1996, as superseded by operation of law pursuant
to a merger by that certain Amended and Restated Agreement of Trust dated as of
December 29, 1998, 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 Holder is entitled to the benefits of the Common
Securities Guarantee Agreement entered into by Host Marriott Corporation, a
Delaware corporation, and IBJ Schroder Bank & Trust Company, as Guarantee
Trustee, dated as of December 2, 1996 (the "Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of ________ 199_.
HOST MARRIOTT FINANCIAL TRUST
By:__________________________________
Name:
As Administrative Trustee
C-2
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-mentioned
Trust Agreement.
Dated:_______________________
IBJ SCHRODER BANK & TRUST COMPANY,
as Property Trustee
By:___________________________________
Authorized Signatory
C-3
EXHIBIT D
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT - This Preferred
Security is a Book-Entry Preferred Securities Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company ("DTC") or a nominee of DTC. This Preferred Security
is exchangeable for Preferred Securities registered in the name of a person
other than DTC or its nominee only in the limited circumstances described in the
Trust Agreement and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a whole by DTC to a nominee of DTC or by
a nominee of DTC to DTC or another nominee of DTC) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative of
DTC (55 Water Street, New York), to Host Marriott Financial Trust or its agent
for registration of transfer, exchange or payment, and any Preferred Security
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of DTC and any payment hereon 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 A PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Host Marriott Financial Trust
6 3/4% Convertible Preferred Securities
(liquidation amount $50 per Preferred Security)
D-1
Host Marriott Financial Trust, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that ______ (the
"Holder") is the registered owner of __________ preferred securities of the
Trust representing an undivided beneficial interest in the assets of the Trust
and designated the Host Marriott Financial Trust 6 3/4% Convertible Preferred
Securities (liquidation amount $50 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 below). The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust dated as of December 2, 1996 as superseded by operation of law
pursuant to a merger by that certain Amended and Restated Agreement of Trust
dated as of December 29, 1998, 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
Guarantee Agreement entered into by Host Marriott Corporation, a Delaware
corporation, and IBJ Schroder Bank & Trust Company, as Guarantee Trustee, dated
as of December 2, 1996 (the "Guarantee"), to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
D-2
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of ________ 199_.
HOST MARRIOTT FINANCIAL TRUST
By:__________________________________
Name:
An Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Preferred Securities referred
to in the within-mentioned Trust Agreement.
Dated:____________________
IBJ SCHRODER BANK & TRUST COMPANY,
as Property Trustee
BY:___________________________________
Authorized Signatory
D-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:_______________
Signature:_________________
(Sign exactly as our name appears on the other side of this Preferred Security
Certificate)
D-4
TO BE ATTACHED TO GLOBAL CERTIFICATE
SCHEDULE A
The initial liquidation amount of this Global Certificate shall be $______.
The following increases or decreases in the liquidation amount of this Global
Certificate have been made:
Amount of increase
in Liquidation
Amount of this Liquidation Amount
Global Certificate of this Global Signature of
including upon Amount of decrease Certificate authorized officer
exercise of in Liquidation following such of Trustee or
over-allotment Amount of this decrease or Securities
Date Made option Global Certificate increase Custodian
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------
D-5
EXHIBIT E -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Sections 5.4(b)(i), (iii) and (v) of the Trust
Agreement)
Property Trustee
Attention: Corporate Trust Department
Re: 6 3/4% Convertible Quarterly Income Preferred
Securities of Host Marriott Financial Trust
(the "Securities")
Reference is made to the Amended and Restated Trust Agreement, dated as of
December 29, 1998 (the "Trust Agreement"), among HMC Merger Corporation (the
"Company"), IBJ Schroder Bank & Trust Company, Delaware Trust Capital
Management, Inc. and the Administrative Trustees named therein. Terms used
herein and defined in the Trust Agreement or in Regulation S or Rule 144 under
the U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to __________ shares of Securities, which are
evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s).___________________
CERTIFICATE No(s).______________________
The Person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Certificate,
they are held through the Clearing Agency participants in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Certificate, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Regulation S
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
904 or Rule 144 under the Securities Act and with all applicable securities laws
of the states of the United States and other jurisdictions.
E-1
Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in accordance
with Rule 904:
(A) the Owner is not a distributor of the Securities, an affiliate of
the Company or any such distributor or a person acting on behalf of any of
the foregoing;
(B) the offer of the Specified Securities was not made to a person in
the United States;
(C) either:
(i) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting
on its behalf reasonably believed that the Transferee was
outside the United States, or
(ii) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the
transaction has been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been made in the United States
by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted Period, then
the requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after a holding period of at least two
years (computed in accordance with paragraph (d) of Rule 144) has lapsed
since the Specified Securities were last acquired from the Trust or from an
affiliate of the Trust, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at least
three years has elapsed since the Specified Securities were last acquired
from the Trust or from an affiliate
E-2
of the Trust, whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the Trust.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Trust and the Purchasers.
Dated:_____________________________
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate)
By:____________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
E-3
EXHIBIT F
Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Sections 5.4(b)(ii), (iii), (iv) and (v) of the Trust
Agreement)
Property Trustee
Attention: Corporate Trust Department
Re: 6 3/4% Convertible Quarterly Income
Preferred Securities of Host Marriott
Financial Trust (the "Securities")
Reference is made to the Amended and Restated Trust Agreement, dated as of
December 29, 1998 (the "Trust Agreement"), among HMC Merger Corporation (the
"Company"), IBJ Schroder Bank & Trust Company, Delaware Trust Capital
Management, Inc. and the Administrative Trustees named therein. Terms used
herein and defined in the Trust Agreement or in Regulation S or Rule 144 under
the U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to ___________ shares of Securities, which are
evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s).__________________
CERTIFICATE No(s)._____________________
The Person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Certificate,
they are held through the Clearing Agency or participant in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Certificate, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A or Rule 144 under the Securities Act and all applicable securities laws of
the states of the
F-1
United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as follows: (1) Rule 144A Transfers. If the transfer is being effected
in accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after a holding period of at least two
years (computed in accordance with paragraph (d) of Rule 144) has elapsed
since the Specified Securities were last acquired from the Trust or from an
affiliate of the Trust, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale, and notice
requirements of rule 144; or
(B) the transfer is occurring after a holding period of at least
three years has elapsed since the Specified Securities were last acquired
from the Trust or from an affiliate of the Trust, whichever is later, and
the Owner is not, and during the preceding three months has not been, an
affiliate of the Trust.
(3) Regulation S Transfers. If the transfer is being effected in
accordance with Regulation S:
(A) the transfer is being made to a person who is not a U.S. person;
or
(B) the transferee is not acquiring such Specified Securities for the
account or benefit of any U.S. person.
This certificate and the statements contained herein are made for your benefit
and benefit of the Trust and the Purchasers.
Dated:_________________________
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:___________________________________
Name:
Title:
F-2
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
F-3
EXHIBIT G
Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 5.4(c))
Property Trustee
Attention: Corporate Trust Department
Re: 6 3/4% Convertible Quarterly Income Preferred Securities
of Host Marriott Financial Trust (the "Securities")
Reference is made to the Amended and Restated Trust Agreement, dated as of
December 29, 1998 (the "Trust Agreement"), among HMC Merger Corporation (the
"Company"), IBJ Schroder Bank & Trust Company, Delaware Trust Capital
Management, Inc. and the Administrative Trustees named therein. Terms used
herein and defined in the Trust Agreement or in Regulation S or Rule 144 under
the U.S. Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to _______________ shares of Securities, which are
evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s).__________________
CERTIFICATE No(s)._____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Certificate,
they are held through the Clearing Agency or participant in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Certificate, they are registered in the name of the
Undersigned as or on behalf of the Owner.
G-1
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Legend pursuant to Section 5.4(c) of the
Trust Agreement. In connection with such exchange, the Owner hereby certifies
that the exchange is occurring after a holding period of at least three years
(computed in accordance with paragraph (d) of Rule 144) has elapsed since the
Specified Securities were last acquired from the Trust or from an affiliate of
the Trust, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Trust. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Trust and the Purchasers.
Dated:________________________
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:________________________________
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
G-2
EXHIBIT H
NOTICE OF CONVERSION
To: IBJ Schroder Bank & Trust Company
as Property Trustee of
Host Marriott Financial Trust
The undersigned owner of these Preferred Securities hereby irrevocably exercises
the option to convert these Preferred Securities, or the portion below
designated, into Common Stock of HOST MARRIOTT CORPORATION (the "Host Marriott
Common Stock") in accordance with the terms of the Amended and Restated Trust
Agreement (the "Trust Agreement"), dated as of December 29, 1998, by Robert E.
Parsons, Jr., Ed Walter and Christopher G. Townsend, as Administrative Trustees,
Delaware Trust Capital Management, Inc., as Delaware Trustee, IBJ Schroder Bank
& Trust Company, as Property Trustee, HMC Merger Corporation, as Depositor, and
by the Holders, from time to time, of individual beneficial interests in the
Trust to be issued pursuant to the Trust Agreement. Pursuant to the
aforementioned exercise of the option to convert these Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Trust Agreement) to (i) exchange such Preferred Securities for a portion of the
Debentures (as that term is defined in the Trust Agreement) held by the Trust
(at the rate of exchange specified in the terms of the Preferred Securities set
forth in the Trust Agreement) and (ii) immediately convert such Debentures on
behalf of the undersigned, into Host Marriott Common Stock (at the conversion
rate specified in the terms of the Preferred Securities set forth in the Trust
Agreement).
The undersigned does also hereby direct the Conversion Agent that the shares
issuable and deliverable upon conversion, together with any check in payment for
fractional shares, be issued in the name of and delivered to the undersigned,
unless a different name has been indicated in the assignment below. If shares
are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Any holder, upon the exercise of its conversion rights in accordance with the
terms of the Trust Agreement and the Preferred Securities, agrees to be bound by
the terms of the Registration Rights Agreement relating to the Host Marriott
Common Stock issuable upon conversion of the Preferred Securities.
Date:___________, _____
in whole ____ in part ____
Number of Preferred Securities to be converted:
______________________
If a name or names other than the undersigned,
please indicate in the spaces below the name or
names in which the shares of Host Marriott Common
Stock are
H-1
to be issued, along with the address or addresses
of such person or persons
_______________________________________________________
_______________________________________________________
_______________________________________________________
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Signature (for conversion only)
Please Print or Typewrite Name and Address, Including Zip Code, and Social
Security or Other Identifying Number
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Signature Guarantee:*_________________________
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*(Signature must be guaranteed by an institution which is a member of the
following recognized Signature Guaranty Programs: (i) The Securities Transfer
Agent Medallion Program (STAMP); (ii) The New York Stock Exchange Medallion
Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or (iv) in
such other guarantee programs acceptable to the Trustee.)
H-2