Exhibit 4.16
OMNICARE CAPITAL TRUST [I/II/III]
AMENDED AND RESTATED
TRUST AGREEMENT
among
OMNICARE, INC., as Depositor,
[ ], as Property Trustee,
[ ], as Delaware Trustee,
and
[ ], [ ] and [ ],
as Administrative Trustees
Dated as of ________, 200_
OMNICARE CAPITAL TRUST [I/II/III]
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Section Trust Agreement Section
Section 310(a)(1)...........................................................8.07
(a)(2)..............................................................8.07
(a)(3)..............................................................8.09
(a)(4)....................................................Not Applicable
(b).................................................................8.08
Section 311(a)............................................................. 8.13
(b) ................................................................8.13
Section 312(a)..............................................................5.07
(b).................................................................5.07
(c).................................................................5.07
Section 313(a)...........................................................8.14(a)
(a)(4)...........................................................8.14(b)
(b)..............................................................8.14(b)
(c)..............................................................8.14(a)
(d).....................................................8.14(a), 8.14(b)
Section 314(a)..............................................................8.15
(b).......................................................Not Applicable
(c)(1)........................................................8.15, 8.16
(c)(2)..............................................................8.16
(c)(3)..............................................................8.16
(d).......................................................Not Applicable
(e).................................................................8.16
Section 315(a)..............................................................8.01
(b)........................................................8.02, 8.14(b)
(c)..............................................................8.01(a)
(d)...........................................................8.01, 8.03
(e).......................................................Not Applicable
Section 316(a)....................................................Not Applicable
(a)(1)(A)...........................................................8.19
(a)(1)(B)...........................................................8.19
(a)(2)....................................................Not Applicable
(b).......................................................Not Applicable
(c).......................................................Not Applicable
Section 317(a)(1) ................................................Not Applicable
(a)(2)....................................................Not Applicable
(b).................................................................5.09
Section 318(a).............................................................10.10
Note: This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms and
provisions.
TABLE OF CONTENTS
Page
ARTICLE I Defined Terms........................................................1
Section 1.01 Definitions.....................................................1
ARTICLE II Establishment of the Trust.........................................10
Section 2.01 Name...........................................................10
Section 2.02 Offices of the Trustees; Principal Place of Business...........10
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses.......................................................11
Section 2.04 Issuance of the Preferred Securities...........................11
Section 2.05 Subscription and Purchase of Subordinated Debt Securities;
Issuance of the Common Securities..............................11
Section 2.06 Declaration of Trust...........................................12
Section 2.07 Authorization to Enter into Certain Transactions...............12
Section 2.08 Assets of Trust................................................17
Section 2.09 Title to Trust Property........................................17
Section 2.10 Mergers and Consolidations of the Trust........................17
ARTICLE III Payment Account...................................................18
Section 3.01 Payment Account................................................18
ARTICLE IV Distributions; Redemption; Exchange................................19
Section 4.01 Distributions..................................................19
Section 4.02 Redemption.....................................................20
Section 4.03 Subordination of Common Securities.............................22
Section 4.04 Payment Procedures.............................................22
Section 4.05 Tax Returns and Reports........................................23
Section 4.06 Payment of Taxes, Duties, Etc. of the Trust....................23
Section 4.07 Payments under the Indenture...................................23
Section 4.08 Exchange of Preferred Securities...............................23
ARTICLE V Trust Securities Certificates.......................................24
Section 5.01 Initial Ownership..............................................24
Section 5.02 The Trust Securities Certificates..............................24
Section 5.03 Execution and Delivery of Trust Securities Certificates........24
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates........................................24
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates...................................................25
Section 5.06 Persons Deemed Securityholders.................................26
Section 5.07 Access to List of Securityholders' Names and Addresses.........26
Section 5.08 Maintenance of Office or Agency................................26
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Section 5.09 Appointment of Paying Agent....................................26
Section 5.10 Ownership of Common Securities by Depositor....................27
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.........................................27
Section 5.12 Notices to Clearing Agency.....................................28
Section 5.13 Definitive Preferred Securities Certificates...................28
Section 5.14 Rights of Securityholders......................................29
ARTICLE VI Acts of Securityholders; Meetings; Voting..........................29
Section 6.01 Limitations on Voting Rights...................................29
Section 6.02 Notice of Meetings.............................................30
Section 6.03 Meetings of Preferred Securityholders..........................30
Section 6.04 Voting Rights..................................................31
Section 6.05 Proxies, etc...................................................31
Section 6.06 Securityholder Action by Written Consent.......................31
Section 6.07 Record Date for Voting and Other Purposes......................31
Section 6.08 Acts of Securityholders........................................32
Section 6.09 Inspection of Records..........................................33
ARTICLE VII Representations and Warranties....................................33
Section 7.01 Representations and Warranties of the Bank and the Property
Trustee........................................................33
Section 7.02 Representations and Warranties of the Delaware Bank and the
Delaware Trustee...............................................34
Section 7.03 Representations and Warranties of the Depositor................35
ARTICLE VIII The Trustees.....................................................36
Section 8.01 Certain Duties and Responsibilities............................36
Section 8.02 Certain Notices................................................37
Section 8.03 Certain Rights of Property Trustee.............................37
Section 8.04 Not Responsible for Recitals or Issuance of Securities.........39
Section 8.05 May Hold Securities............................................39
Section 8.06 Compensation; Fees; Indemnity..................................39
Section 8.07 Trustees Required; Eligibility.................................40
Section 8.08 Conflicting Interests..........................................40
Section 8.09 Co-Trustees and Separate Trustee...............................40
Section 8.10 Resignation and Removal; Appointment of Successor..............42
Section 8.11 Acceptance of Appointment by Successor.........................43
Section 8.12 Merger, Conversion, Consolidation or Succession to Business....43
Section 8.13 Preferential Collection of Claims Against Depositor or Trust...44
Section 8.14 Reports by Property Trustee....................................44
Section 8.15 Reports to the Property Trustee................................44
Section 8.16 Evidence of Compliance with Conditions Precedent...............44
Section 8.17 Number of Trustees.............................................44
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Section 8.18 Delegation of Power............................................45
Section 8.19 Voting.........................................................45
Section 8.20 Enforcement of Rights of Property Trustee by
Securityholders................................................45
ARTICLE IX Termination and Liquidation........................................46
Section 9.01 Termination Upon Expiration Date...............................46
Section 9.02 Early Termination..............................................46
Section 9.03 Termination....................................................46
Section 9.04 Certificate of Cancellation....................................47
Section 9.05 Liquidation....................................................47
ARTICLE X Miscellaneous Provisions............................................48
Section 10.01 Limitation of Rights of Securityholders........................48
Section 10.02 Amendment......................................................49
Section 10.03 Separability...................................................50
Section 10.04 Governing Law..................................................50
Section 10.05 Successors.....................................................50
Section 10.06 Headings.......................................................50
Section 10.07 Notice and Demand..............................................50
Section 10.08 Conflict with Trust Indenture Act..............................51
EXHIBIT A Form of Common Securities Certificate
EXHIBIT B Form of Expense Agreement
EXHIBIT C Form of Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of ________,
200_, by and among (i) Omnicare, Inc., a Delaware corporation (the "Depositor"
or the "Company"), (ii) [ ], a banking corporation duly organized and
existing under the laws of New York, as trustee (the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Trustee, the "Bank"),
(iii) [ ], as Delaware trustee (the "Delaware Trustee" and, in its
separate corporate capacity and not in its capacity as Delaware Trustee, the
"Delaware Bank"), (iv) [ ], an individual, [ ], an individual,
and [ ], an individual, as administrative trustees (each an
"Administrative Trustee" and together the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a statutory trust pursuant to the Delaware Statutory
Trust Act by the entering into that certain Trust Agreement, dated as of
__________, 2003 (the "Original Trust Agreement"), and by the execution and
filing by the Delaware Trustee with the Secretary of State of the State of
Delaware of the Certificate of Trust, dated __________, 2003; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the addition of the Bank, [individual], [individual] and
[individual] as trustees of the Trust, (ii) the acquisition by the Trust from
the Depositor of all of the right, title and interest in the Subordinated Debt
Securities, (iii) the issuance of the Common Securities by the Trust to the
Depositor and (iv) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement.
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
parties and for the benefit of the Securityholders, hereby amends and restates
the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.01 Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Administrative Trustee" means each of the individuals identified as
an "Administrative Trustee" in the preamble to this Trust Agreement solely in
their capacities as Administrative Trustees of the Trust formed and continued
hereunder and not in their individual capacities, or such trustee's successor(s)
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. 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.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under federal bankruptcy law or any other
applicable federal or state law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of such Person or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the
continuance of such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a 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 federal bankruptcy law or any other
applicable federal or state law, or the consent
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by it to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its property,
or the 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, or the taking of action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors or a duly authorized committee thereof and
to be in full force and effect on the date of such certification, and delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form to the
Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday,
(ii) a day on which banks in New York, New York are authorized or obligated by
law or executive order to remain closed or (iii) a day on which the Corporate
Trust Office or the Indenture Trustee's principal corporate trust office is
closed for business.
"Certificate Depository Agreement" means the agreement among the
Trust, the Property Trustee and The Depository Trust Company, as the initial
Clearing Agency, dated ________, ____, relating to the Preferred Securities
Certificates, as the same may be amended and supplemented from time to time.
"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.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership interest
in the assets of the Trust having a Liquidation Amount of $___ and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
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"Common Securities Certificate" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form attached
as Exhibit A.
"Company" has the meaning specified in the preamble hereto.
"Corporate Trust Office" means the office of the Property Trustee at
which its corporate trust business shall be principally administered.
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (i) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time.
"Delaware Trustee" means the commercial bank or trust company or any
other Person identified as the "Delaware Trustee" and has the meaning specified
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" means Omnicare, Inc., in its capacity as "Depositor"
under this Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of an Indenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default
for a period of 30 days; or
4
(iii) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in whose performance or breach is
dealt with in clause (ii) or (iii) above) and continuation of such
default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Trustees by the
Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Company and the Trust, substantially in the form
attached as Exhibit B, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Extension Period" has the meaning provided in Section 2.03(a) of
the Subordinated Indenture.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Company and [ ], as Guarantee Trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the Holders
of the Preferred Securities, as amended from time to time.
"Indenture Event of Default" means an "Event of Default" as defined
in the Subordinated Indenture.
"Indenture Redemption Date" means "Redemption Date," as defined in
the Subordinated Indenture.
"Indenture Trustee" means the trustee under the Subordinated
Indenture.
"Investment Company Event" means the receipt by the Trust of an
opinion of a nationally recognized independent counsel, to the effect that, as a
result of the occurrence of an amendment to or change in applicable law or
regulations, or a written 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"), 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 Issue Date.
5
"Issue Date" means the date of the delivery of the Trust Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed
of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Subordinated Indenture and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) Subordinated Debt Securities having a principal amount equal
to the Liquidation Amount of the Trust Securities of the Holder to whom such
Subordinated Debt Securities are distributed.
"Liquidation Amount" means the stated amount of $___ per Trust
Security.
"Liquidation Date" means the date on which Subordinated Debt
Securities are to be distributed to Holders of Trust Securities in connection
with a dissolution and liquidation of the Trust pursuant to Section 9.05.
"Liquidation Distribution" has the meaning specified in Section
9.06.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Depositor. An Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such officer's
opinion, 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.
6
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to federal income tax matters may
rely on published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore canceled by the
Administrative Trustees or delivered to the Administrative Trustees
for cancellation;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with
the Property Trustee or any Paying Agent for the Holders of such
Preferred Securities; provided that if such Preferred Securities are
to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been delivered pursuant to this
Trust Agreement;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, the Holder of the Common
Securities, any Trustee or any Affiliate of the Depositor or any Trustee shall
be disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
which such Trustee knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, the Holder of the Common Securities, one
or more Trustees and/or any such Affiliate. Preferred Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry 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
7
maintaining an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the ________.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the
Securityholders in which all amounts paid in respect of the Subordinated Debt
Securities will be held and from which the Property Trustee shall make payments
to the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means an individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $___ and
having rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of a Preferred Security or Securities, substantially in the form
attached as Exhibit C.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security,
plus accrued and unpaid Distributions to such date.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" are described in
Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
is a beneficial owner within the meaning of the Delaware Statutory Trust Act.
8
"Special Event" means a Tax Event or an Investment Company Event.
"Subordinated Debt Securities" means the $__________ aggregate
principal amount of the Depositor's _______% Subordinated Debt Securities due
__________, issued pursuant to the Subordinated Indenture, which may be
increased by an additional amount not to exceed $__________ aggregate principal
amount of the Depositor's _______% Subordinated Debt Securities due __________
issued pursuant to the Subordinated Indenture, the Underwriters' Over allotment
Option and Section 2.05 herein.
"Subordinated Indenture" means the Subordinated Debt Securities
Indenture, dated as of ________, 200_, between the Depositor and the Indenture
Trustee, as amended or supplemented from time to time.
"Tax Event" means the receipt by the Trust of an independent Opinion
of Counsel, to the effect that, as a result of (a) any amendment to, change in
or announced prospective change in the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official administrative written decision or pronouncement,
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which pronouncement, or decision is
announced on or after the Issue Date, there is more than an insubstantial risk
that (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to the United States federal income tax with respect to income received
or accrued on the Subordinated Debt Securities, (ii) interest payable by the
Company on the Subordinated Debt Securities is not, or within 90 days of the
date of such opinion will not be, deductible, in whole or in part, by the
Company for United States federal income tax purposes, or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
"Trust" means the Delaware Statutory Trust continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement,
as the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Amended and Restated Trust Agreement and any modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"Trustees" means the Persons identified as "Trustees" in the
preamble to this Trust Agreement solely in their capacities as Trustees of the
Trust formed and continued hereunder and not in their individual capacities, or
their successor in interest in such capacity, or any successor trustee appointed
as herein provided.
9
"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 (i) the Subordinated Debt Securities, (ii)
any cash on deposit in, or owing to, the Payment Account, and (iii) all proceeds
and rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriters" means the underwriters named in the Underwriting
Agreement.
"Underwriters' Overallotment Option" means the Underwriters' option
to purchase up to an additional _________ Preferred Securities pursuant to the
Underwriting Agreement.
"Underwriters' Overallotment Option Closing Date" means the closing
of the transactions contemplated by the Underwriters' Overallotment Option.
"Underwriting Agreement" means the Underwriting Agreement, dated
________, 200_, among the Trust, the Depositor and the Underwriters.
ARTICLE II
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be known as
"Omnicare Capital Trust [I/II/III]", 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. The Administrative Trustees may change
the name of the Trust from time to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business.
The address of the Property Trustee is _______________, or at such other address
as the Property Trustee may designate by written notice to the Securityholders
and the Depositor. The principal place of business of the Delaware Trustee is
c/o ____________, Attn: __________, or at such other address in Delaware as the
Delaware Trustee may designate by notice to the Depositor. The address of the
Administrative Trustees is c/o Omnicare, Inc., 100 East
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RiverCenter Boulevard, Covington, Kentucky 41011, Attention: Secretary. The
principal place of business of the Trust is c/o Omnicare, Inc., 100 East
RiverCenter Boulevard, Covington, Kentucky 41011. The Depositor may change the
principal place of business of the Trust at any time by giving notice thereof to
the Trustees.
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses. The Delaware Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of the Trustees,
promptly reimburse the Trustees for any such expenses paid by the Trustees. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04 Issuance of the Preferred Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to the Underwriters
Preferred Securities Certificates, registered in the name of the nominee of the
initial Clearing Agency, in an aggregate amount of __________ Preferred
Securities having an aggregate Liquidation Amount of $__________, against
receipt of the aggregate purchase price of such Preferred Securities of
$__________, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee. In addition, in connection with the Underwriters'
Overallotment Option, the Administrative Trustees, on behalf of the Trust, may
execute and deliver to the Underwriters Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency, in an
additional aggregate amount of up to __________ Preferred Securities having an
aggregate Liquidation Amount of $__________, against receipt of the aggregate
purchase price of such Preferred Securities, which amount the Administrative
Trustees shall promptly deliver to the Property Trustee.
Section 2.05 Subscription and Purchase of Subordinated Debt
Securities; Issuance of the Common Securities.
(a) Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust, shall execute
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of __________ Common Securities
having an aggregate Liquidation Amount of $__________, against payment by the
Depositor of such amount. Contemporaneously therewith, the Administrative
Trustees, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Subordinated Debt Securities, registered in the name of the Property
Trustee, on behalf of the Trust and the Holders, and having an aggregate
principal amount equal to $__________ Subordinated Debt Securities, and in
satisfaction of the purchase price for such Subordinated Debt Securities, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum
of $__________ Subordinated Debt Securities.
(b) If the Underwriters' Overallotment Option is exercised and there
is an Option Closing Date, then an Administrative Trustee, on behalf of the
Trust, shall execute and deliver to the Depositor, Common Securities
Certificates, registered in the
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name of the Depositor, in an additional aggregate amount of Common Securities
having an aggregate Liquidation Amount of up to $________ against payment by the
Depositor of such amount. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor, additional Subordinated Debt Securities, registered in the name of
the Trust and having an aggregate principal amount of up to $________, and, in
satisfaction of the purchase price of such Subordinated Debt Securities, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor an
amount equal to the sum of the amounts received from one of the Administrative
Trustees pursuant to the last sentence of Section 2.04.
Section 2.06 Declaration of Trust. The exclusive purposes and
functions of the Trust are (i) to issue and sell the Trust Securities and use
the proceeds from such sale to acquire the Subordinated Debt Securities, and
(ii) to engage in those activities necessary, incidental, appropriate or
convenient thereto. The Depositor hereby appoints each of the Bank, the Delaware
Bank, [Individual], [Individual] and [Individual] as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein. 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 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 for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Delaware Statutory Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in paragraph C of
this Section, and in accordance with the following paragraphs A and B, the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting singly
or jointly, shall have the exclusive power, duty and authority to act on behalf
of the Trust with respect to the following matters:
(i) to acquire the Subordinated Debt Securities with the
proceeds of the sale of the Trust Securities; provided, however, the
Administrative Trustees shall cause legal title to all of the
Subordinated Debt Securities to be vested in, and the Subordinated
Debt Securities to be held of record in the name of, the Property
Trustee for the benefit of the Trust and Holders of the Trust
Securities;
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(ii) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established,
including for the purposes of ss. 316(c) of the Trust Indenture Act
and with respect to Distributions, voting rights, redemptions, and
exchanges, and to issue relevant notices to Holders of the Trust
Securities as to such actions and applicable record dates;
(iii) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section
2.07(B)(v), the Property Trustee has the power to bring such Legal
Action;
(iv) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers,
contractors, advisors, and consultants and pay reasonable
compensation for such services;
(v) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(vi) to give the certificate to the Property Trustee required
by ss. 314(a)(4) of the Trust Indenture Act, which certificate may
be executed by any Administrative Trustee;
(vii) to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of
this Trust Agreement;
(viii) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory
Statutory Trust under the laws of the State of Delaware and of each
other jurisdiction in which such existence is necessary to protect
the limited liability of the Holders of the Trust Securities or to
enable the Trust to effect the purposes for which the Trust has been
created;
(ix) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed
with respect to the Trust to be duly prepared and filed by the
Administrative Trustees, on behalf of the Trust;
(x) to issue and sell the Trust Securities;
(xi) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the consummation hereof;
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(xii) to assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the qualification of this
Trust Agreement as a trust indenture under the Trust Indenture Act;
(xiii) 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 Exchange Act, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(xiv) to send notices (other than notices of default) and
other information regarding the Trust Securities and the
Subordinated Debt Securities to the Securityholders in accordance
with this Trust Agreement;
(xv) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Securities Registrar in accordance with
this Trust Agreement;
(xvi) to assist in, to the extent provided in this Trust
Agreement, the winding up of the affairs of and termination of the
Trust and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware; and
(xvii) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is
necessary, appropriate, convenient or advisable to protect and
conserve the Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
B. As among the Trustees, the Property Trustee shall have the
exclusive power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(i) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the
Trust Securities to the extent the Subordinated Debt Securities are
redeemed or mature;
(ii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Trust Agreement,
engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the distribution pursuant to terms of
this Trust Agreement of Subordinated Debt Securities to Holders of
Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights,
powers and privileges of a holder of the Subordinated Debt
Securities under the Subordinated Indenture and, if an Event of
Default occurs and is continuing, shall enforce for the benefit of,
and subject to the rights of, the
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Holders of the Trust Securities, its rights as holder of the
Subordinated Debt Securities under the Subordinated Indenture;
(iv) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms
of this Trust Agreement;
(v) take any Legal Action specifically required of the
Property Trustee pursuant to the terms of this Trust Agreement which
arises out of or in connection with an Event of Default or the
Property Trustee's duties and obligations under this Trust
Agreement, the Delaware Statutory Trust Act or the Trust Indenture
Act;
(vi) the establishment and maintenance of the Payment Account;
(vii) the receipt of and holding of legal title to the
Subordinated Debt Securities as described herein;
(viii) the collection of interest, principal and any other
payments made in respect of the Subordinated Debt Securities in the
Payment Account;
(ix) the distribution of amounts owed to the Securityholders
in respect of the Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Subordinated Debt Securities
to the Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the winding up of
the affairs of and termination of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary,
appropriate, convenient or advisable to 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).
C. So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized
15
by this Trust Agreement, (ii) sell, assign, transfer, exchange, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify as a grantor
trust for United States federal income tax purposes, (iv) incur any indebtedness
for borrowed money, (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property, (vi) issue any securities
other than the Trust Securities, or (vii) have any power to, or agree to any
action by the Depositor that would, vary the investment (within the meaning of
Treasury Regulation Section 301.7701-4(c)) of the Trust or of the
Securityholders. The Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
D. In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act of 1933,
as amended, in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees
of actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) to prepare for filing by the Trust, and to execute on
behalf of the Trust, an application to the New York Stock Exchange
or any other national stock exchange or the NASDAQ National Market
for listing upon notice of issuance of any Preferred Securities;
(iv) to prepare for filing by the Trust, and to execute on
behalf of the Trust, with the Commission a registration statement on
Form 8-A relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act, including any amendments
thereto;
(v) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities and to execute,
deliver and perform the Underwriting Agreement on behalf of the
Trust; and
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(vi) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or taxed as other than a grantor trust for United States
federal income tax purposes and so that the Subordinated Debt Securities will be
treated as indebtedness of the Depositor for United States federal income tax
purposes. In this connection, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not materially and
adversely affect the interests of the Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall consist
of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Securityholders and the Trust in accordance with this Trust
Agreement. The right, title and interest of the Property Trustee to the
Subordinated Debt Securities shall vest automatically in each Person who may
thereafter be appointed as Property Trustee in accordance with the terms hereof.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust may
not consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other body, except as described below or otherwise provided in
this Trust Agreement. The Trust may at the request of the Company, with the
consent of the Administrative Trustees and without the consent of the Holders of
the Trust Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any state; provided, that (i) such successor entity either (x)
expressly assumes all of the obligations of the Trust with respect to the Trust
Securities or (y) substitutes for the Preferred Securities other securities
having substantially the same terms as the Trust Securities (herein referred to
as the "Successor Securities") so long as the Successor Securities rank the same
as the Trust Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of legal title to the Subordinated
Debt Securities, (iii) the Preferred Securities or any 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, (iv) such merger, consolidation,
amalgamation or
17
replacement 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 or replacement does
not adversely affect the rights, preferences and privileges of the Holders of
the Trust Securities (including any Successor Securities) in any material
respect, other than with respect to any dilution of the holders' interest in the
new entity, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation, or
replacement, the Company has received an Opinion of Counsel to the effect that
(A) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Trust
Securities (including any Successor Securities) in any material respect, other
than with respect to any dilution of the holders' interest in the new entity,
and (B) following such merger, consolidation, amalgamation or replacement,
neither the Trust nor such successor entity will be required to register as an
investment company under the Investment Company Act of 1940, and (viii) the
Company guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Trust Securities, consolidate, amalgamate, merge with
or into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if, in the opinion of
tax counsel, such consolidation, amalgamation, merger or replacement would cause
the Trust or the successor entity to be classified as other than a grantor trust
for federal income tax purposes.
ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and an agent of the Property
Trustee shall have exclusive control and sole right of withdrawal with respect
to the Payment Account for the purpose of making deposits in and withdrawals
from the Payment Account in accordance with this Trust Agreement. All monies and
other property deposited or held from time to time in the Payment Account shall
be held by the Property Trustee in the Payment Account for the exclusive benefit
of the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Subordinated Debt Securities. Amounts
held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
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ARTICLE IV
Distributions; Redemption; Exchange
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative and
accrue from the Issue Date and, except in the event that the Depositor exercises
its right to an Extension Period, shall be payable [quarterly] [semi-annually]
in arrears on [ ], [ ], [ ] and [ ] of each year, commencing on ______ __, 200_.
If any date on which Distributions are otherwise payable on the Trust Securities
is not a Business Day, then the payment of such Distribution shall be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, payment of such Distribution shall be made
on the immediately preceding Business Day, in each case, with the same force and
effect as if made on such date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at
a rate of _____% per annum of the Liquidation Amount of the Trust Securities.
The amount of Distributions payable for any full [quarterly] [semi-annually]
period shall be computed on the basis of twelve 30-day months and a 360-day
year. If the Company exercises its rights to an Extension Period, then the rate
per annum at which Distributions on the Trust Securities accumulate shall be
increased by an amount such that the aggregate amount of Distributions that
accumulate on all Trust Securities during any such Extension Period is equal to
the aggregate amount of interest (including interest payable on unpaid interest
at the percentage rate per annum set forth above, compounded [quarterly]
[semi-annually], to the extent permitted by applicable law) that accrues during
any such Extension Period on the Subordinated Debt Securities. The payment of
such deferred interest, together with interest thereon, will be distributed to
the Holders of the Trust Securities as received at the end of any Extension
Period.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
legally and immediately available funds in the Payment Account for the payment
of such Distributions.
(d) Distributions on the Trust Securities on each 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 close of business on (i) the Business Day prior to the relevant Distribution
Date if the Preferred Securities are represented by Book-Entry Preferred
Securities Certificates or (ii) the fifteenth calendar day prior to the relevant
Distribution Date if the Preferred Securities are represented by Definitive
Preferred Securities Certificates.
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Each Trust Security upon registration of transfer of or in exchange
for or in lieu of any other Trust Security shall carry the rights of
Distributions accrued and unpaid, and to accrue, which were carried by such
other Trust Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Subordinated Debt
Securities, whether at the stated maturity of the Subordinated Debt Securities
or upon earlier redemption as provided in the Subordinated Debt Securities and
the Subordinated Indenture, including pursuant to a Special Event, the Trust
will be required to redeem a Like Amount of Trust Securities at the Redemption
Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the total Liquidation Amount of the Trust Securities to
be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accrue on and after
such date; and
(vi) the place where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Subordinated Debt Securities. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be deemed payable on each
Redemption Date only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of such Redemption
Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00 noon New York time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee will, so long
as the 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
20
to Section 4.02(c), shall irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price and will give the Paying Agent
irrevocable instructions to pay the Redemption Price 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 given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price, but without interest, and such
Securities will cease to be outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date shall be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next succeeding
calendar year, payment of such Redemption Price shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
Trust Securities is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue at the then applicable rate, from such
Redemption Date originally established by the Trust for such Preferred
Securities to the date such Redemption Price is actually paid.
(e) Subject to Section 4.03(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based on liquidation amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for a
redemption of portions equal to the Liquidation Amount or integral multiple
thereof) of the Liquidation Amount of Preferred Securities of a denomination
larger than such Liquidation Amount; provided, however, that before undertaking
redemption of the Preferred Securities on other than a pro rata basis, the
Property Trustee shall have received an Opinion of Counsel that the status of
the Trust as a grantor trust for federal income tax purposes would not be
adversely affected. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities which has been or is to be redeemed.
21
(f) If, at any time, a Special Event shall occur and be continuing,
the Depositor shall have the right, upon not less than 30 nor more than 60 days'
notice, to redeem the Subordinated Debt Securities, in whole but not in part,
for cash within 90 days following the occurrence of such Special Event, and,
following such redemption, a Like Amount of Preferred Securities shall be
redeemed by the Trust at the Redemption Price.
(g) Subject to the foregoing provisions of Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Company or its Affiliates may, at any time and from time to time,
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions 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 Indenture Event of Default shall have occurred and be
continuing, no payment of any Distribution on, or Redemption Price of, any
Common Security, and no other payment on account of the redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accrued and unpaid Distributions 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 on, or Redemption
Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Indenture Event of Default,
the Holder of Common Securities will be deemed to have waived any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the
Preferred Securities shall be 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, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable Distribution Dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
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Section 4.05 Tax Returns and Reports. The Administrative Trustee(s)
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. The Administrative
Trustee(s) shall (a) prepare and file (or cause to be prepared and filed) 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 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 with a copy of all such returns and reports promptly
after such filing or furnishing. The Property Trustee shall comply with United
States federal withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to the Securityholders under
the Trust Securities.
Section 4.06 Payment of Taxes, Duties, Etc. of the Trust. Upon
receipt under the Subordinated Debt Securities of Additional Payments, the
Property Trustee, at the direction of an Administrative Trustee or the
Depositor, shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
Section 4.07 Payments under the Indenture. Any amount payable
hereunder to any Holder of Preferred Securities shall be reduced by the amount
of any corresponding payment such Holder has directly received under the
Subordinated Indenture pursuant to Section _____ thereof.
Section 4.08 Exchange of Preferred Securities.
(a) If at any time the Company or any of its Affiliates is the
Holder of any Preferred Securities, the Company and such Affiliate(s) shall have
the right to deliver to the Property Trustee all or such portion of their
Preferred Securities as they elect and receive, in exchange therefor,
Subordinated Debt Securities in an aggregate principal amount equal to the
aggregate stated Liquidation Amount of, with an interest rate identical to the
distribution rate of, and accrued and unpaid interest equal to accumulated and
unpaid Distributions on, such Preferred Securities. Such election (i) shall be
exercisable effective on any Distribution Date by the Company or its
Affiliate(s) delivering to the Property Trustee a written notice of such
election specifying the aggregate Liquidation Amount of the Preferred Securities
with respect to which such election is being made and the Distribution Date on
which such exchange shall occur, which Distribution Date shall be not less than
ten Business Days after the date of receipt by the Property Trustee of such
election notice and (ii) shall be conditioned upon the Company or its
Affiliate(s) having delivered or caused to be delivered to the Property Trustee
or its designee the Preferred Securities which are the subject of such election
by 10:00 a.m. New York City time, on the Distribution Date on which such
exchange is to occur. After the exchange, such Preferred Securities will be
canceled and will no longer be deemed to be Outstanding and all rights of the
Company or its Affiliate(s) with respect to such Preferred Securities will
cease.
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(b) In the case of an exchange described in (a) above, the Trust
will, on the date of such exchange, exchange Subordinated Debt Securities having
a principal amount equal to a proportional amount of the aggregate Liquidation
Amount of the Outstanding Common Securities based on the ratio of the aggregate
Liquidation Amount of the Preferred Securities exchanged pursuant to (a) above
divided by the aggregate Liquidation Amount of the Preferred Securities
Outstanding immediately prior to such exchange, for such proportional amount of
Common Securities held by the Company (which contemporaneously shall be canceled
and no longer be deemed to be Outstanding); provided, that the Company delivers
or causes to be delivered to the Property Trustee or its designee the required
amount of Common Securities to be exchanged by 10:00 a.m. New York City time on
the Distribution Date on which such exchange is to occur.
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the creation of the Trust by
the contribution by the Depositor pursuant to Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
Section 5.02 The Trust Securities Certificates. Each of the
Preferred and Common Securities Certificates shall be issued in minimum
denominations of the Liquidation Amount and integral multiples of such
Liquidation Amount in excess thereof. The Trust Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee. Trust Securities Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03 Execution and Delivery of Trust Securities
Certificates. On the Issue Date and the Underwriters' Overallotment Option
Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust and delivered to or upon the
written order of the Depositor signed by its Chairman of the Board, its
President or any Vice President, without further corporate action by the
Depositor, in authorized denominations.
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to be
kept, at the
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office or agency maintained pursuant to Section 5.08, 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 the 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.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees shall execute and deliver in the name of the
designated transferee or transferees one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of execution by such Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the transfer of any
Preferred Securities that have been called for redemption. At the option of a
Holder, Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Securities Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar or
the Administrative Trustees 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.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees or any one of them on behalf of the Trust
shall execute and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other
25
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees or the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
Distributions (subject to Section 4.01(d)) and for all other purposes
whatsoever, and neither the Trustees nor the Securities Registrar shall be bound
by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses. The
Administrative Trustees shall furnish or cause to be furnished (unless the
Property Trustee is acting as Securities Registrar with respect to the Trust
Securities) to (i) the Property Trustee semi-annually, not later than [ ] and
[ ] in each year, and (ii) the Property Trustee within 15 days after receipt by
any Administrative Trustee of a request therefor from the Property Trustee in
writing, a list, in such form as the Property Trustee may reasonably require, of
the names and addresses of the Securityholders as of a date not more than 15
days prior to the time such list is furnished. If three or more Securityholders
or one or more Holders of Trust Securities Certificates evidencing not less than
25% of the outstanding Liquidation Amount apply in writing to the Administrative
Trustees, and such application states that the applicants desire to communicate
with other Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities Certificates and such application is
accompanied by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five Business Days
after the receipt of such application, afford such applicants access during
normal business hours to the current list of Securityholders. Each Holder, by
receiving and holding a Trust Securities Certificate, shall be deemed to have
agreed not to hold either the Depositor, the Administrative Trustees or the
Property Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 5.08 Maintenance of Office or Agency. The Administrative
Trustees shall maintain in the Borough of Manhattan, New York, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate
[ ], as its principal agency for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall
make Distributions and other payments provided hereby to Securityholders from
the Payment Account and shall report the amounts of such Distributions and
payments to the
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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 and payments provided hereby. The Administrative
Trustees may revoke such power and remove the Paying Agent if such Trustees
determine in their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material respect. The Paying
Agent shall initially be the Property Trustee, and it may choose any co-paying
agent that is acceptable to the Administrative Trustees and the Depositor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees and the Depositor. In the
event that a Paying Agent shall resign or be removed, the Administrative
Trustees shall appoint a successor that is acceptable to the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply
to the 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
Issue Date and the Underwriters' Overallotment Option Closing Date, the
Depositor shall acquire, and thereafter retain, beneficial and record ownership
of the Common Securities. Any attempted transfer of the Common Securities,
except for transfers by operation of law or to an Affiliate of the Depositor or
a permitted successor pursuant to Section 5.01 of the Subordinated Indenture,
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT
REFERRED TO HEREIN".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as
27
provided in Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of principal of and interest on
the Book-Entry Preferred Securities and the giving of instructions
or directions to Owners of Book-Entry Preferred Securities) as the
sole Holder of Book-Entry Preferred Securities and shall have no
obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Trust Agreement, the
provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and
agreements between such Owners and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Certificate Depository
Agreement, unless and until Definitive Preferred Securities
Certificates are issued pursuant to Section 5.13, the Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates. If (i)
the Depositor advises the Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Preferred Securities Certificates, and the Depositor is unable to locate
a qualified successor, or (ii) the Depositor at its option advises the Trustees
in writing that it elects to terminate the book-entry system through the
Clearing Agency, then the Administrative Trustees shall notify the Clearing
Agency and Holders of the Preferred Securities. Upon surrender to the
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Administrative Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees or any one of them shall execute the Definitive
Preferred Securities Certificates in accordance with the instructions of the
Clearing Agency. Neither the Securities Registrar nor the Trustees shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance
of Definitive Preferred Securities Certificates, the Trustees shall recognize
the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the beneficial ownership 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 other similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01 hereof, will be fully paid and nonassessable by the Trust. Except
as otherwise provided in the Expense Agreement and Section 10.01 hereof, the
Holders of the Trust Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Trust Agreement, in the Subordinated
Indenture, and as otherwise required by law, no Holder of Preferred Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Subordinated Debt Securities are held by the
Property Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture Trustee,
or executing any trust or power conferred on the Indenture Trustee with respect
to such
29
Subordinated Debt Securities, (ii) waive any past default which is waivable
under Article ___ of the Subordinated Indenture, (iii) exercise the remedies
available to it under the Subordinated Indenture as a Holder of the Subordinated
Debt Securities or (iv) consent to any amendment, modification or termination of
the Subordinated Indenture or the Subordinated Debt Securities, where such
consent shall be required, or to any other action, as holder of the Subordinated
Debt Securities, under the Subordinated Indenture, without, in each case,
obtaining the prior approval of the Holders of at least a majority in
Liquidation Amount of the Preferred Securities; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
holder of Subordinated Debt Securities affected thereby, no such consent shall
be given by the Trustees 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 Preferred Securities, except
pursuant to a subsequent vote of the Holders of Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the
Subordinated Debt Securities. 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
independent Opinion of Counsel to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement provides for,
or the Trustees otherwise propose to effect, (i) any action that would adversely
affect in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to this Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. 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 independent Opinion of Counsel to the effect that the Trust
will not be classified as other than a grantor trust for United States federal
income tax purposes on account of such action.
Section 6.02 Notice of Meetings. Notice of all meetings of the
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Administrative Trustees pursuant to Section 10.07 to each
Preferred Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
Section 6.03 Meetings of Preferred Securityholders. No annual
meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the
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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 Preferred
Securityholders to vote on any matters as to which Preferred Securityholders are
entitled to vote.
Preferred Securityholders 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 quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding a
majority of the Preferred Securities (based upon their Liquidation Amount) held
by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $___ of Liquidation Amount represented by their Trust Securities
in respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding a majority of all outstanding Trust
Securities entitled to vote in respect of such action (or such other proportion
thereof as shall be required by any express provision of this Trust Agreement)
shall consent to the action in writing (based upon their Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust
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Agreement, or for the purpose of any other action, the Administrative Trustees
may from time to time fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or other action, as
the case may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to the
Administrative Trustees. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustees deem 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 of Trust
Securities and the Administrative Trustees or among such Securityholders or
Trustees with respect
32
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Trustees, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
Representations and Warranties
Section 7.01 Representations and Warranties of the Bank and the
Property Trustee. The Bank and the Property Trustee, each severally on behalf of
and as to itself, as of the date hereof, and each successor Property Trustee at
the time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (in the case of a successor Property Trustee, the
term "Bank" as used herein shall be deemed to refer to such successor Property
Trustee in its separate corporate capacity) hereby represents and warrants (as
applicable) for the benefit of the Depositor and the Securityholders that:
(a) the Bank is a banking corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles;
(d) the execution, delivery and performance by the Property Trustee
of this Trust Agreement has been duly authorized by all necessary corporate or
other action on the part of the Property Trustee and does not require any
approval of stockholders of the Bank and such execution, delivery and
performance shall not (i) violate the Bank's charter or by-laws; (ii) violate
any provision of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation of imposition of, any Lien on any
properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Property Trustee or the Bank is a party or by which it is bound; or
(iii) violate any law,
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governmental rule or regulation of the United States or its jurisdiction of
incorporation, as the case may be, governing the banking or trust powers of the
Bank or the Property Trustee (as appropriate in context) or any order, judgment
or decree applicable to the Property Trustee or the Bank;
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing federal
law governing the banking or trust powers of the Bank or the Property Trustee,
as the case may be, under the laws of the United States or its jurisdiction of
incorporation; and
(f) there are no proceedings pending or, to the best of the Property
Trustee's knowledge, threatened against or affecting the Bank or the Property
Trustee in any court or before any governmental authority, agency or arbitration
board or tribunal which, individually or in the aggregate, would materially and
adversely affect the Trust or would question the right, power and authority of
the Property Trustee to enter into or perform its obligations as one of the
Trustees under this Trust Agreement; and
(g) the Property Trustee is a Person eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000.000.
Section 7.02 Representations and Warranties of the Delaware Bank and
the Delaware Trustee. The Delaware Bank and the Delaware Trustee, each severally
on behalf of and as to itself, as of the date hereof, and each successor
Delaware Trustee at the time of the successor Delaware Trustee's acceptance of
appointment as Delaware Trustee hereunder (the term "Delaware Bank" being used
to refer to such successor Delaware Trustee in its separate corporate capacity),
hereby represents and warrants (as applicable) for the benefit of the Depositor
and the Securityholders that:
(a) the Delaware Bank is a national banking corporation duly
organized, validly existing and in good standing under the laws of the United
States of America;
(b) the Delaware Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally binding
agreement of the Delaware Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors, rights and to general equity principles;
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(d) the execution, delivery and performance by the Delaware Trustee
of this Trust Agreement has been duly authorized by all necessary corporate or
other action on the part of the Delaware Trustee and does not require any
approval of stockholders of the Delaware Bank and such execution, delivery and
performance shall not (i) violate the Delaware Bank's charter or by-laws; (ii)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of, any Lien on
any properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Delaware Bank or the Delaware Trustee is a party or by which it is
bound; or (iii) violate any law, governmental rule or regulation of the United
States or the State of Delaware, as the case may be, governing the banking or
trust powers of the Delaware Bank or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Delaware Bank or the
Delaware Trustee;
(e) neither the authorization, execution or delivery by the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Delaware Trustee contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing federal law governing the banking or trust powers of the Delaware Bank
or the Delaware Trustee, as the case may be, under the laws of the United States
or the State of Delaware; and
(f) there are no proceedings pending or, to the best of the Delaware
Trustee's knowledge, threatened against or affecting the Delaware Bank or the
Delaware Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power and
authority of the Delaware Trustee to enter into or perform its obligations as
one of the Trustees under this Trust Agreement.
Section 7.03 Representations and Warranties of the 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, shall have been duly and
validly executed, issued and delivered by the Administrative Trustees, on behalf
of the Trust, pursuant to the terms and provisions of, and in accordance with
the requirements of, this Trust Agreement and the Securityholders shall be, as
of such date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Bank, the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
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ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee,
the Trust Indenture Act. The Delaware Trustee and the Administrative Trustees
shall have no liability under this Trust Agreement except for gross negligence,
bad faith or willful misconduct. Notwithstanding the foregoing, no provision
of this Trust Agreement shall require the Trustees to expend or risk their own
funds or otherwise incur any financial liability in the performance of any of
their duties hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to them. Whether or not therein expressly so provided, every provision
of this Trust Agreement relating to the conduct or affecting the liability of
or affording protection to the Trustees shall be subject to the provisions of
this Section.
(b) All payments made by the Property Trustee in respect of the
Trust Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee 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 income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to
the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under this Trust
Agreement;
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(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debt
Securities and the Payment Account shall be to deal with such
property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this
Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with
the Depositor 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 301 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 negligence, default
or misconduct of the Administrative Trustees or the Depositor.
Section 8.02 Certain Notices. (a) Within 90 days after the
occurrence of any default actually known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.07, notice of any default known to the Property Trustee to the
Securityholders, the Administrative Trustees and the Depositor, unless such
default shall have been cured or waived. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such exercise
to the Holders and the Administrators, unless such exercise shall have been
revoked.
Section 8.03 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) 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 or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party
or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of
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action, or (B) in construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein, or (C) the
Property Trustee is unsure of the application of any provision of
this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice to
the Depositor requesting written instructions of the Depositor as to
the course of action to be taken. The Property Trustee shall take
such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from
taking, by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which to
the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Securityholders, in which
event the Property Trustee shall have no liability except for its
own bad faith, negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other document, unless
requested in writing to do so by one or more Securityholders; and
(vi) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, provided that the Property
Trustee shall be responsible for its own negligence or recklessness
with respect to selection of any agent or attorney appointed by it
hereunder.
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Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by
it hereunder are legally available unless an officer of the Property Trustee
assigned to its Institutional Trust Services Department shall have received
written notice from the Company, any Holder or any other Trustee that such funds
are not legally available.
Section 8.05 May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of the Trustees or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.06 Compensation; Fees; Indemnity.
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence, bad faith or
willful misconduct (or, in the case of the Administrative Trustees or the
Delaware Trustee, any such expense, disbursement or advance as may be
attributable to its, his or her gross negligence, bad faith or willful
misconduct); and
(3) to indemnify the Trustees for, and to hold the Trustees harmless
against, any and all loss, damage, claims, liability or expense, arising out of
or in connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties hereunder except any such expense, disbursement or advance as may be
attributable to such Trustee's negligence, bad faith or willful misconduct (or,
in the case of the Administrative Trustees or the Delaware Trustee, any such
expense, disbursement or advance as may be attributable to its, his or her gross
negligence, bad faith or willful misconduct).
The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement or the resignation or removal of any Trustee.
Section 8.07 Trustees Required; Eligibility.
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(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 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 such
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity authorized to conduct a trust business and with its principal
place of business in the State of Delaware that shall act through one or more
persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Holder of the Common
Securities and the Property Trustee shall have power to appoint, and upon the
written request of the Property Trustee, the Depositor shall for such purpose
join with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to act as
separate trustee of any such Trust Property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Depositor does not join in such appointment within 15 days after the receipt by
it of a request so to do, or in case an Indenture Event of Default has occurred
and is continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07.
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Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted
by law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of
the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Trustees hereunder,
shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee or by the
Property Trustee and such co-trustee or separate trustee jointly, as
shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Property Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties, and obligations
shall be exercised and performed by such co-trustee or separate
trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case an
Indenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property Trustee
in the execution, delivery, and performance of all instruments and
agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this
Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-trustee or separate trustee.
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(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the resigning Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Holder
of the Common Securities. If an Indenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at such time by Act of
the Securityholders of a majority in Liquidation Amount of the Preferred
Securities Certificates, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become incapable
of continuing to act as Trustee at a time when no Indenture Event of Default
shall have occurred and be continuing, the Holder of the Common Securities, by
Act of the Holder of the Common Securities delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when an
Indenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority in Liquidation
Amount of the Preferred Securities then outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and the Relevant Trustee shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
in accordance with this Section 8.10 and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a Securityholder of
Trust Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each resignation
and each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.07 and shall
give notice to the
42
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.
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 incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the act
of the remaining Administrative Trustee or (ii) otherwise by the Depositor (with
the successor in each case being an individual who satisfies the eligibility
requirement for Administrative Trustees set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event the Depositor believes that any Administrative Trustee
has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance with
the preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder.
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 preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
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Section 8.13 Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Subordinated Debt
Securities or the Trust Securities), the Property Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Depositor or Trust (or any such other obligor).
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after ________ of each year commencing with
________, ____, if required by Section 313(a) of the Trust Indenture Act, the
Property Trustee shall transmit a brief report dated as of such ________ with
respect to any of the events specified in such Section 313(a) that may have
occurred since the later of the date of this Trust Agreement or the preceding
__________.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
Section 8.15 Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a)(4) of the Trust Indenture Act in the form and in the manner
required by Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent. Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee 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 pursuant to Section 314(c)(1) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be five, provided that
the Depositor by written instrument may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
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(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted to the
Administrative Trustees and shall discharge the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(A), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Voting. Except as otherwise provided in this Trust
Agreement, the consent or approval of the Administrative Trustees shall require
consent or approval by not less than a majority of the Administrative Trustees,
unless there are only two, in which case both must consent.
Section 8.20 Enforcement of Rights of Property Trustee by
Securityholders. If an Event of Default occurs and is continuing, then the
Holders of Preferred Securities will rely on the enforcement by the Property
Trustee of its rights against the Company as the holder of the Subordinated Debt
Securities. In addition, 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 direct the exercise of any trust or power conferred upon
the Property Trustee under this Trust Agreement, including the right to direct
the Property Trustee to exercise the remedies available to it as a holder of the
Subordinated Debt Securities, provided that such direction shall not be in
conflict with any rule of law or with this Trust Agreement, and could not
involve the Property Trustee in personal liability in circumstances where
reasonable indemnity would not be adequate. If the Property Trustee fails to
enforce its rights under the Subordinated Debt Securities, a Holder of Preferred
Securities may, to the fullest extent permitted by applicable law, institute a
legal proceeding against the Company to enforce its rights under this Trust
Agreement without first instituting any legal proceeding against the Property
Trustee or any other Person, including the Trust; it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by
45
availing of, any provision of this Trust Agreement to affect, disturb or
prejudice the rights of any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Trust Agreement, except in the manner herein provided and for
the equal and ratable benefit of all such Holders. Notwithstanding the
foregoing, a Holder of Preferred Securities may institute a legal proceeding
directly against the Company, without first instituting a legal proceeding
against or requesting or directing that action be taken by the Property Trustee
or any other Person, for enforcement of payment to such Holder of principal of
or interest on the Subordinated Debt Securities having a principal amount equal
to the aggregate stated liquidation amount of the Preferred Securities of such
Holder on or after the due dates therefor specified or provided for in the
Subordinated Debt Securities. The Company shall be subrogated to all rights of
the Holders of Preferred Securities in respect of any amounts paid to such
Holders by the Company pursuant to this Section.
ARTICLE IX
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically dissolve on _____________,____ (the "Expiration Date") or earlier
pursuant to Section 9.02.
Section 9.02 Early Termination. Upon the first to occur of any of
the following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the delivery of written direction to the Property Trustee by the
Depositor at any time (which direction is optional and wholly within the
discretion of the Depositor) to terminate the Trust and distribute the
Subordinated Debt Securities to Securityholders as provided in Section 9.05;
(c) the payment at maturity or redemption of all of the Subordinated
Debt Securities, and the consequent payment of the Preferred Securities;
(d) the entrance of an order for dissolution of the Trust shall have
been entered by a court of competent jurisdiction;
(e) 90 days after the revocation of the Depositor's charter, but
only if its charter is not reinstated during such 90-day period; and
(f) if prior to the issuance of the Trust Securities, when the
Depositor and the Administrative Trustees have consented to such dissolution.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the
46
latest to occur of the following: (a) the distribution by the Property Trustee
to Securityholders upon the liquidation of the Trust pursuant to Section 9.05,
or upon the redemption of all of the Trust Securities pursuant to Section 4.02,
of all amounts or instruments required to be distributed hereunder upon the
final payment of the Trust Securities; (b) the payment of any 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 9.04 Certificate of Cancellation. A Certificate of
Cancellation ("Certificate") to terminate the Trust (as permitted hereby) may be
signed by any Administrative Trustee, individually, in such capacity so long as
such Certificate fully complies with all legal requirements.
Section 9.05 Liquidation.
(a) If any Early Termination Event specified in clause (a), (b), (d)
and (e) of Section 9.02 occurs, the Trust shall be liquidated and the Property
Trustee shall distribute the Subordinated Debt Securities to the Securityholders
as provided in this Section 9.05.
(b) In connection with a distribution of the Subordinated Debt
Securities, each Holder of Trust Securities shall be entitled to receive, after
the satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Subordinated Debt
Securities. Notice of liquidation shall be given by the Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60 days prior to
the Liquidation Date to each Holder of Trust Securities at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed
to represent a Like Amount of Subordinated Debt Securities; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Subordinated Debt Securities as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(c) In order to effect the liquidation of the Trust and distribution
of the Subordinated Debt Securities 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 Subordinated Debt Securities in exchange for the Outstanding
Trust Securities Certificates.
47
(d) Except where Section 9.02(c) or 9.05(f) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Subordinated Debt
Securities will be issued to Holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Subordinated Debt
Securities, accruing interest at the rate provided for in the Subordinated Debt
Securities from the last Distribution Date on which a Distribution was made on
such Trust Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Trust Securities Certificates with respect to such
Subordinated Debt Securities) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Subordinated Debt Securities upon surrender of Trust Securities Certificates.
(e) The Depositor will use its reasonable efforts to have the
Subordinated Debt Securities that are distributed in exchange for the Preferred
Securities to be listed on such securities exchange as the Preferred Securities
are then listed. The Depositor may elect to have the Subordinated Debt
Securities issued in book-entry form to the Clearing Agency or its nominee.
(f) In the event that, notwithstanding the other provisions of this
Section 9.05, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Subordinated Debt
Securities in the manner provided herein is determined by the Administrative
Trustees not to be practical, in which event the Holders will be entitled to
receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors, an amount equal
to the Liquidation Amount per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if an Indenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
ARTICLE X
Miscellaneous Provisions
Section 10.01 Limitation of Rights of Securityholders. The death or
incapacity of any Person having an interest, beneficial or otherwise, in a Trust
Security shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such Person or any Securityholder for such
Person, to claim an accounting, take any action or bring any proceeding in and
for a partition or winding up of the
48
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 10.02 Amendment.
(a) This Trust Agreement may be amended from time to time by the
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 add to the covenants,
restrictions or obligations of the Depositor, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement, or
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes at any time that any Trust Securities are outstanding, or to ensure
that the Trust will not be required to register as an investment company under
the Investment Company Act of 1940, or to conform to any change in the
Investment Company Act of 1940 or the Trust Indenture Act or the rules and
regulations under either law; provided, however, that, except in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any such amendments of this Trust Agreement
shall become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any provision in
this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Trust Securityholders representing a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United States federal
income tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount 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, (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date, or (iii) change
the consent required pursuant to Section 10.02.
(d) Notwithstanding any other provisions of this Trust Agreement,
the Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, or cease to be classified as a grantor trust for United States
Federal income tax purposes.
49
(e) Without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor. In executing any amendment permitted by this Trust Agreement, the
Trustees shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Trust Agreement. Any
Trustee may, but shall not be obligated to, enter into any such amendment which
affects such Trustee's own rights, duties, immunities or liabilities under this
Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
Section 10.03 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 10.04 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE.
Section 10.05 Successors. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to both the Trust and the
Trustees, including any successor by operation of law.
Section 10.06 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.07 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address appear on the
Securities Register and (ii) in the case of the Common Securityholder or the
Depositor, to Omnicare, Inc., 100 East RiverCenter Boulevard, Covington,
Kentucky 41011, Attention: Corporate Secretary, Facsimile No. [ ].
Such notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust
50
or the Trustees shall be given in writing addressed (until another address is
published by the Trust) as follows: (i) with respect to the Property Trustee and
the Delaware Trustee, [ ], Attention:
Institutional Trust Services; [ ], Attention:
Institutional Trust Services, as the case may be; and (ii) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked Attention: Administrative Trustees of Omnicare Capital Trust
[I/II/III] c/o Corporate Secretary. Such notice, demand or other communication
to or upon the Trust or the Trustees shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the applicable Trustee.
Section 10.08 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 Trustee Agreement and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
51
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or have caused this Trust Agreement to be executed on their behalf,
all as of the day and year first above written.
OMNICARE, INC.,
as Depositor
By: __________________________________
Name:
Title:
[ ],
as Property Trustee
By: __________________________________
Name:
Title:
[ ],
as Delaware Trustee
By: __________________________________
Name:
Title:
__________________________________
[ ],
as Administrative Trustee
__________________________________
[ ],
as Administrative Trustee
__________________________________
[ ],
as Administrative Trustee
52
EXHIBIT A
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE
TRUST AGREEMENT REFERRED TO HEREIN
Certificate Number Number of Common Securities
C-1 _______
Certificate Evidencing Common
Securities of
OMNICARE CAPITAL TRUST [I/II/III]
Common Securities
(Liquidation Amount $___ per Common Security)
Omnicare Capital Trust [I/II/III], a statutory Statutory Trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Omnicare, Inc. (the "Holder") is the registered owner of ______________
(______) common securities of the Trust representing undivided beneficial
interests in the assets of the Trust and designated the Common Securities
(Liquidation Amount $___ per Common Security) (the "Common Securities"). In
accordance with Section 5.10 of the Trust Agreement (as defined below) the
Common Securities are not transferable, except by operation of law or as
permitted by the Trust Agreement referred to herein, 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 ________, 200_, as
the same may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
A-1
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of _______, ____.
OMNICARE CAPITAL TRUST
[I/II/III]
By:___________________________
[ ],
as Administrative Trustee
By:___________________________
[ ],
as Administrative Trustee
By:___________________________
[ ],
as Administrative Trustee
A-2
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of ________, 200_, between Omnicare, Inc., a Delaware corporation (the
"Company"), and Omnicare Capital Trust [I/II/III], a Delaware Statutory Trust
(the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Subordinated Debt Securities from the
Company and to issue and sell Omnicare Capital Trust [I/II/III] ____% Trust
Preferred Securities (the "Preferred Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of ________, 200_ as the same may be
amended from time to time (the "Trust Agreement"); and
WHEREAS, the Company is the issuer of the Subordinated Debt
Securities.
NOW, THEREFORE, in consideration of the purchase by each holder of
the Preferred Securities, which purchase the Company hereby agrees shall benefit
the Company and which purchase the Company acknowledges will be made in reliance
upon the execution and delivery of this Agreement, the Company and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities. This Agreement is intended to
be for the benefit of, and to be enforceable by, all such Beneficiaries, whether
or not such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and
be of no further force and effect upon the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Company and [ ],
as guarantee trustee, or under this Agreement for any reason
B-1
whatsoever. Except as set forth in this Section 1.02, this Agreement is
continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements
and duties of the Company under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation
under, arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to,
or obtain the consent of, the Company with respect to the happening of any of
the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
Section 1.06. Subrogation. Omnicare shall be subrogated to all
rights (if any) of the Trust in respect of any amounts paid to the Beneficiaries
by Omnicare under this Agreement; provided, however, that Omnicare shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Agreement.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the Beneficiaries.
B-2
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Preferred Securities of any series are outstanding, this Agreement shall not
be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex), to-wit:
Omnicare Capital Trust [I/II/III]
c/o [Guarantee Trustee]
[ ]
[ ]
Facsimile No.:
Attention:
Omnicare, Inc.
100 East RiverCenter Boulevard
Covington, Kentucky 41011
Facsimile No.:
Attention:
Section 2.04. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 2.05. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
B-3
THIS AGREEMENT is executed as of the date and year first above
written.
OMNICARE, INC.
By: __________________________
Name:
Title:
OMNICARE CAPITAL TRUST [I/II/III]
By: __________________________
[ ], as
Administrative Trustee
B-4
Exhibit C
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Georgia Power Capital Trust V or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), any transfer, pledge, or
other use hereof for value or otherwise by or to any person is wrongful inasmuch
as the registered owner thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred
Securities
[ ]
P-__ CUSIP NO.
Certificate Evidencing Preferred
Securities of
Omnicare Capital Trust [I/II/III]
___% Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Omnicare Capital Trust [I/II/III], a statutory Statutory Trust
created under the laws of the State of Delaware (the "Trust"), hereby certifies
that Cede & Co. (the "Holder") is the registered owner of _________ (_______)
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Omnicare Capital Trust [I/II/III]
___% Trust Preferred Securities (Liquidation Amount $____ per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.04 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust, dated as of ___________, 200__, as the
same may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of Preferred Securities as set forth therein. The
holder of this certificate is entitled to the benefits of a guarantee by
Omnicare, Inc., a Delaware corporation (the "Company"), pursuant to a Guarantee
Agreement between the Company and [ ], as guarantee
trustee, dated as of ___________, 200__, as the same may be amended from time to
time (the "Guarantee"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee to the holder of this certificate
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
C-1
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of ________, ____.
OMNICARE CAPITAL TRUST [I/II/III]
By:___________________________
[ ],
as Administrative Trustee
By:___________________________
[ ],
as Administrative Trustee
By:___________________________
[ ],
as Administrative Trustee
C-2
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 Securities Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date: ________________________________________
Signature: ____________________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)