Exhibit 4.18
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AMENDED AND RESTATED
TRUST AGREEMENT
among
ITT HARTFORD GROUP, INC., as Depositor,
Wilmington Trust Company, as Property Trustee
and Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of _____________ __, ____
HARTFORD CAPITAL IV
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TABLE OF CONTENTS
Page
ARTICLE I
Defined Terms
-------------
Section 101. Definitions.................................2
ARTICLE II
Establishment of the Trust
--------------------------
Section 201. Name.......................................12
Section 202. Office of the Delaware Trustee;
Principal Place of Business................13
Section 203. Initial Contribution of Trust Property;
Organizational Expenses....................13
Section 204. Issuance of the Preferred Securities.......13
Section 205. Subscription and Purchase of Debentures;
Issuance of the Common Securities..........14
Section 206. Declaration of Trust.......................15
Section 207. Authorization to Enter into Certain
Transactions...............................15
Section 208. Assets of Trust............................20
Section 209. Title to Trust Property....................20
ARTICLE III
Payment Account
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Section 301. Payment Account............................20
ARTICLE IV
Distributions; Redemption
-------------------------
Section 401. Distributions..............................20
Section 402. Redemption.................................22
Section 403. Subordination of Common Securities.........24
Section 404. Payment Procedures.........................25
Section 405. Tax Returns and Reports....................25
Section 406. Payment of Taxes, Duties, Etc. of the
Trust......................................26
ARTICLE V
Trust Securities Certificates
-----------------------------
Section 501. Initial Ownership..........................26
Section 502. The Trust Securities Certificates..........26
Section 503. Delivery of Trust Securities
Certificates...............................27
i
Section 504. Registration of Transfer and Exchange of
Preferred Securities Certificates..........27
Section 505. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates..............28
Section 506. Persons Deemed Securityholders.............29
Section 507. Access to List of Securityholders' Names
and Addresses..............................29
Section 508. Maintenance of Office or Agency............30
Section 509. Appointment of Paying Agent................30
Section 510. Ownership of Common Securities by
Depositor..................................31
Section 511. Book-Entry Preferred Securities
Certificates; Common Securities
Certificate................................31
Section 512. Notices to Clearing Agency.................32
Section 513. Definitive Preferred Securities
Certificates...............................33
Section 514. Rights of Securityholders..................33
ARTICLE VI
Acts of Securityholders; Meetings; Voting
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Section 601. Limitations on Voting Rights...............34
Section 602. Notice of Meetings.........................35
Section 603. Meetings of Preferred Securityholders......35
Section 604. Voting Rights..............................36
Section 605. Proxies, etc...............................36
Section 606. Securityholder Action by Written
Consent....................................37
Section 607. Record Date for Voting and Other
Purposes...................................37
Section 608. Acts of Securityholders....................37
Section 609. Inspection of Records......................39
ARTICLE VII
Representations and Warranties
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Section 701. Representations and Warranties of the
Bank, the Property Trustee and the
Delaware Trustee...........................39
ARTICLE VIII
The Trustees
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Section 801. Certain Duties and Responsibilities........41
Section 802. Notice of Defaults.........................43
Section 803. Certain Rights of Property Trustee.........43
Section 804. Not Responsible for Recitals or Issuance
of Securities..............................46
ii
Section 805. May Hold Securities........................46
Section 806. Compensation; Indemnity; Fees..............46
Section 807. Corporate Property Trustee Required;
Eligibility of Trustees....................47
Section 808. Conflicting Interests......................48
Section 809. Co-Trustees and Separate Trustee...........48
Section 810. Resignation and Removal; Appointment of
Successor..................................50
Section 811. Acceptance of Appointment by Successor.....52
Section 812. Merger, Conversion, Consolidation or
Succession to Business.....................53
Section 813. Preferential Collection of Claims
Against Depositor or Trust.................53
Section 814. Reports by Property Trustee................54
Section 815. Reports to the Property Trustee............54
Section 816. Evidence of Compliance with Conditions
Precedent..................................55
Section 817. Number of Trustees.........................55
Section 818. Delegation of Power........................55
ARTICLE IX
Termination, Liquidation and Merger
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Section 901. Termination Upon Expiration Date...........56
Section 902. Early Termination..........................56
Section 903. Termination................................57
Section 904. Liquidation................................57
Section 905. Mergers, Consolidations, Amalgamations
or Replacements of the Trust...............59
ARTICLE X
Miscellaneous Provisions
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Section 1001. Limitation of Rights of Securityholders....60
Section 1002. Amendment..................................60
Section 1003. Separability...............................62
SECTION 1004. GOVERNING LAW..............................62
Section 1005. Payments Due on Non-Business Day...........62
Section 1006. Successors.................................62
Section 1007. Headings...................................63
Section 1008. Reports, Notices and Demands...............63
Section 1009. Agreement Not to Petition..................64
Section 1010. Trust Indenture Act; Conflict with Trust
Indenture Act..............................64
Section 1011. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture....................65
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
iii
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities
iv
Hartford Capital IV
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
(S) 310 (a)(1)..............................................807
(a)(2)..............................................807
(a)(3)..............................................809
(a)(4)..............................................207(a)(ii)
(b).................................................808
(S) 311 (a).................................................813
(b).................................................813
(S) 312 (a).................................................507
(b).................................................507
(c).................................................507
(S) 313 (a).................................................814(a)
(a)(4)..............................................814(b)
(b).................................................814(b)
(c).................................................1008
(d).................................................814(c)
(S) 314 (a).................................................815
(b).................................................Not Applicable
(c)(1)..............................................816
(c)(2)..............................................816
(c)(3)..............................................Not Applicable
(d).................................................Not Applicable
(e).................................................101, 816
(S) 315 (a).................................................801(a), 803(a)
(b).................................................802, 1008
(c).................................................801(a)
(d).................................................801, 803
(e).................................................Not Applicable
(S) 316 (a).................................................Not Applicable
(a)(1)(A)...........................................Not Applicable
(a)(1)(B)...........................................Not Applicable
(a)(2)..............................................Not Applicable
(b).................................................Not Applicable
(c).................................................607
(S) 317 (a)(1)..............................................Not Applicable
(a)(2)..............................................Not Applicable
(b).................................................509
(S) 318 (a).................................................1010
_______________
Note: This reconciliation and tie sheet shall not, for any
purpose, be deemed to be a part of the Trust Agreement.
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
_____________ ____, 1996, among (i) ITT Hartford Group, Inc., a Delaware
corporation (including any successors or assigns, the "Depositor"), (ii)
Wilmington Trust Company, a Delaware banking corporation duly organized and
existing under the laws of the State of Delaware, as property trustee and
Delaware trustee (in each such capacity, the "Property Trustee" and "Delaware
Trustee," respectively, and, in its separate corporate capacity and not in its
capacity as Property Trustee or Delaware Trustee, the "Bank"),
(iii)________________, an individual, and ___________, an individual, each of
whose address is c/o ITT Hartford Group, Inc., Hartford Plaza, Hartford,
Connecticut 06115 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the "Trustees") and (iv) the
several Holders, as hereinafter defined.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor and the Delaware Trustee have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of October 25, 1995 (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, filed on October 25, 1995,
attached as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to
amend and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities by the Trust pursuant to the Underwriting Agreement, (iii)
the acquisition by the Trust from the Depositor of all of the right, title and
interest in the Debentures and (iv) the appointment of the Administrative
Trustees;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other party and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
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Section 101. Definitions.
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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 608.
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"Additional Amount" means, with respect to Trust Securities of
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a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Administrative Trustee" means each of _____, and _______,
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solely in his capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in his individual capacity, or such Administrative
Trustee's successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person
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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 securit-
2
ies, 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
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this Trust Agreement.
"Bankruptcy Event" means, with respect to any
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Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of
its property or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in
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Section 1009.
"Board Resolution" means a copy of a resolution certified by
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the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Company to which authority to act on behalf of
3
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Book Entry Preferred Securities Certificates" means a
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beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 511.
"Business Day" means a day other than (a) a Saturday or
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Sunday, (b) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or (c) a day
on which the Property Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among
--------------------------------
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit B, 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.
"Closing Date" means the First Time of Delivery as defined in
------------
the Underwriting Agreement, which date is also the date of execution and
delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as
----
amended.
"Commission" means the Securities and Exchange Commission, as
----------
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
4
"Common Security" means an undivided beneficial interest in
---------------
the assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
-----------------------------
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the
----------------------
Property Trustee located in Wilmington, Delaware.
"Debenture Event of Default" means an "Event of
--------------------------
Default" as defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
-------------------------
Debentures to be redeemed under the Indenture, the date fixed for redemption
under the Indenture.
"Debenture Trustee" means Wilmington Trust Company, a Delaware
-----------------
banking corporation organized under the laws of the State of Delaware and any
successor thereto.
"Debentures" means the $_____________ aggregate principal
----------
amount [(or up to $____________ aggregate principal amount if and to the extent
the overallotment option granted by the Trust to the purchasers of the Preferred
Securities is exercised)] of the Depositor's ____% Junior Subordinated
Deferrable Interest Debentures, Series ___, issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or
--------------------------------------------
both (as the context requires) of (a) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 511(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 513.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
---------------------------
the Delaware Code, 12 Del. C. (S) 3801, et seq., as it may be amended from time
-- ----
to time.
"Delaware Trustee" means the commercial bank or trust company
----------------
identified as the "Delaware Trustee" in the preamble to this Trust Agreement
solely in its capacity as Delaware Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in
5
interest in such capacity, or any successor trustee appointed as herein
provided.
"Depositor" has the meaning specified in the
---------
preamble to this Trust Agreement.
"Distribution Date" has the meaning specified in
-----------------
Section 401(a).
"Distributions" means amounts payable in respect of the Trust
-------------
Securities as provided in Section 401.
"Event of Default" means any one of the following events
----------------
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default;
or
(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Property Trustee in the payment
of any Redemption Price of any Trust Security when it
becomes due and payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in whose
performance or breach is dealt with in clause (b) or (c), above) and
continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
6
"Expense Agreement" means the Agreement as to Expenses and
-----------------
Liabilities between the Depositor and the Trust, substantially in the form
attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in
---------------
Section 901.
"Grantor Trust Event" has the meaning specified in
-------------------
Section 902(b).
"Guarantee" means the Guarantee Agreement executed and
---------
delivered by the Depositor and Wilmington Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.
"Indenture" means the Junior Subordinated Indenture, dated as
---------
of _________ __, 1996, as supplemented by the Supplemental Indenture, dated as
of _________ ___, ____, between the Depositor and the Debenture Trustee, as
trustee, as amended or supplemented from time to time.
"Investment Company Event" means the occurrence of a change in
------------------------
law or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") to the effect that the Trust is or will
be considered an "investment company" that is required to be registered under
the 1940 Act, which Change in 1940 Act Law becomes effective on or after the
date of original issuance of the Preferred Securities under this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
----
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
-----------
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Debentures to be contemporaneously redeemed in accordance with the
Indenture the proceeds of which will be used to pay the Redemption Price of such
Trust Securities, and (b) with respect to a distribution of Debentures to
Holders of Trust Securities in connection with a dissolution or liquidation of
the Trust, Debentures having a principal amount equal to the Liquidation
7
Amount of the Trust Securities of the Holder to whom such Debentures are
distributed.
"Liquidation Amount" means the stated amount of $25
------------------
per Trust Security.
"Liquidation Date" means each Date on which Debentures are to
----------------
be distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified
------------------------
in Section 904(d).
"1940 Act" means the Investment Company Act of 1940,
--------
as amended.
"Officers' Certificate" means a certificate signed by the
---------------------
Chairman and Chief Executive Officer, President or a Vice President, and by the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, 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 816 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition
and the definitions relating thereto;
(b) a brief statement of the nature and scope of
the examination or investigation undertaken by each
officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
------------------
may be counsel for the Trust, the Property
8
Trustee or the Depositor, but not an employee of any thereof, and who shall be
acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified
------------------------
in the recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
-----------
means, as of the date of determination, all Preferred Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore cancelled by
the Administrative Trustees or delivered to the Administrative
Trustees for cancellation;
(b) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that, if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange
for or in lieu of which other Preferred Securities have been executed
and delivered pursuant to Sections 504, 505, 511 and 513;
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, 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 that such Trustee knows to
be so owned shall be so disregarded and (b) the foregoing shall not apply at any
-
time when all of the outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
9
"Owner" means each Person who is the beneficial owner of a
-----
Book Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
------------
appointed pursuant to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
---------------
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Debentures will be held and from which the Property
Trustee shall make payments to the Securityholders in accordance with Sections
401 and 402.
"Person" means any individual, corporation, partnership,
------
joint venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
------------------
the assets of the Trust, having a Liquidation Amount of $25 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate
--------------------------------
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit E.
"Property Trustee" means the commercial bank or trust company
----------------
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to
---------------
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date and the stated maturity
--------
of the Debentures shall be a Redemption Date for a Like Amount of Trust
Securities.
10
"Redemption Price" means, with respect to any Trust Security,
----------------
the Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the date of redemption, plus the related amount of the
premium, if any, paid by the Depositor upon the concurrent redemption of a Like
Amount of Debentures, allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified
----------------
in Section 810.
"Securities Register" and "Securities Registrar" have the
------------------- --------------------
respective meanings specified in Section 504.
"Securityholder" or "Holder" means a Person in whose name a
-------------- ------
Trust Security or Securities is registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Special Event" has the meaning specified in Section 902(b).
-------------
"Tax Event" means the receipt by the Trust of an Opinion of
---------
Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
issuance of the Preferred Securities under this Trust Agreement, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days
-
after the date thereof, subject to United States Federal income tax with respect
to income received or accrued on the Debentures, (ii) interest payable by the
--
Depositor on the Debentures is not, or within 90 days after the date thereof,
will not be, deductible, in whole or in part, for United States Federal income
tax purposes or (iii) the Trust is, or will be within 90 days after the date
---
thereof, subject to more than a de minimis amount of other taxes, duties,
assessments or other governmental charges.
"Trust" means the Delaware business trust created and
-----
continued hereby and identified on the cover page to this Trust Agreement.
11
"Trust Agreement" means this Amended and Restated Trust
---------------
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
-------------------
in force at the date as of which this instrument was executed; provided,
--------
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of
-------------- - -
the Property Trustee under the Guarantee, (c) any cash on deposit in, or owing
-
to, the Payment Account and (d) all proceeds and rights in respect of the
-
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common
--------------
Securities or the Preferred Securities.
"Trust Securities Certificate" means any one of the
----------------------------
Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Pricing Agreement, dated
----------------------
as of ___________, ____, among the Trust, the Depositor and the Underwriters
named therein incorporating the Underwriting Agreement, dated as of ___________.
ARTICLE II
ESTABLISHMENT OF THE TRUST
--------------------------
Section 201. Name.
----
The Trust continued hereby shall be known as "Hartford Capital
IV," as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may conduct the business
12
of the Trust, make and execute contracts and other instruments
on behalf of the Trust and sue and be sued.
Section 202. Office of the Delaware Trustee;
------------------------------
Principal Place of Business.
---------------------------
The address of the Delaware Trustee in the State of Delaware
is c/o Wilmington Trust Company, 1105 N. Market Street, Wilmington, Delaware,
Attention: Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o ITT Hartford Group, Inc., Hartford Plaza, Hartford, Connecticut 06115.
Section 203. Initial Contribution of Trust Property;
--------------------------------------
Organizational Expenses.
-----------------------
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 204. Issuance of the Preferred Securities.
------------------------------------
On __________ ___, ____ the Depositor, on behalf of the Trust
and pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver to the Underwriters named
therein 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 the event and to the extent the overallotment
option granted by the Trust pursuant to the Underwriting Agreement is exercised
by such Underwriters, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and
13
deliver to such Underwriters Preferred Securities Certificates, registered in
the name of the nominee of the initial Clearing Agency, in an aggregate amount
of up to _________________ Preferred Securities having an aggregate Liquidation
Amount of up to $____________, against receipt of the aggregate purchase price
of such Preferred Securities of up to $__________, which amount the
Administrative Trustees shall promptly deliver to the Property Trustee, on the
date specified pursuant to the Underwriting Agreement.]
Section 205. Subscription and Purchase of Debentures;
---------------------------------------
Issuance of the Common Securities.
---------------------------------
Contemporaneously with the execution and delivery of this
Trust Agreement, the Administrative Trustees, on behalf of the Trust, shall
subscribe to and purchase from the Depositor Debentures, registered in the name
of the Trust and having an aggregate principal amount equal to $__________, and,
in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$_________. Contemporaneously therewith, an Administrative Trustee, on behalf
of the Trust, shall execute in accordance with Section 503 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
the sum of $___________. [In the event the overallotment option granted by the
Trust with respect to the Preferred Securities pursuant to the Underwriting
Agreement is exercised by the Underwriters named therein, the Administrative
Trustees, on behalf of the Trust and contemporaneously with the delivery to the
Underwriters of such Preferred Securities, shall subscribe to and purchase from
the Depositor, Debentures registered in the name of the Trust and having an
aggregate principal amount up to $__________, and, in satisfaction of the
purchase price for such Debentures, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor an amount equal to the aggregate principal
amount of Debentures being purchased.] Contemporaneously therewith, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 503 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount [(determined on
a pro rata basis to the extent the overallotment option is exercised)]
____________ Common Securities having an aggregate Liquidation
14
Amount of up to $_________ against payment by the Depositor of an amount equal
to the aggregate Liquidation Amount of the Common Securities Certificates so
delivered.
Section 206. Declaration of Trust.
--------------------
The exclusive purposes and functions of the Trust are (a) to
-
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Debentures, and (b) to engage in those activities necessary, convenient or
-
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
Section 207. Authorization to Enter into Certain
-----------------------------------
Transactions.
------------
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), 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:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust
Securities;
15
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense
Agreement and the Certificate Depository Agreement and such
other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in 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;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor and the registration of
the Preferred Securities under the Securities Exchange Act of
1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of
default) and other information regarding the Trust Securities
and the Debentures to the Securityholders in accordance with
this Trust Agreement;
(F) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in
accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities
in accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(I) unless otherwise determined by the Depositor,
the Property Trustee or the Administrative Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative
16
Trustees) any documents that the Administrative Trustees have
the power to execute pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers
and privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Securityholders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default the taking of any
action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give
effect to the terms
17
of this Trust Agreement and protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any
particular Securityholder);
(J) registering transfers of the Trust
Securities in accordance with this Trust Agreement;
and
(K) subject to this Section 207(a)(ii), the Property
Trustee shall have none of the duties, liabilities, powers or
the authority of the Administrative Trustees set forth in
Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
-
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
--
dispose of any of the Trust Property or interests therein, including to
Securityholders, 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
federal income tax purposes, (iv) incur any indebtedness for borrowed money or
--
issue any other debt or (v) take or consent to any action that would result in
-
the placement of a Lien on any of the Trust Property. The Administrative
Trustees shall defend all claims and demands of all Persons at any time claiming
any Lien on any of the Trust Property adverse to the interest of the Trust or
the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the 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 and
to execute on behalf of the Trust a registration statement on Form S-3
or S-4 in relation to the Preferred Securities, including any
amendments thereto;
18
(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 with the Commission and to
execute on behalf of the Trust a registration statement on Form 8-A
relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) to negotiate the terms of, and execute and deliver, the
Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) any other actions necessary or desirable to carry out any of
the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or taxed as a corporation for United States federal income
tax purposes and so that the Debentures will be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and the Administrative Trustees determines
in their discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the interests of
the holders of the Preferred Securities.
19
Section 208. Assets of Trust.
---------------
The assets of the Trust shall consist of the Trust Property.
Section 209. Title to Trust Property.
-----------------------
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Securityholders in
accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
---------------
Section 301. Payment Account.
---------------
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
-------------------------
Section 401. Distributions.
-------------
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accrue from _________, _____,
and, except
20
in the event that the Depositor exercises its right to extend the interest
payment period for the Debentures pursuant to the Indenture, shall be payable
[monthly] [quarterly] [semi-annually] in arrears on [insert payment dates] of
each year, commencing on __________ __, _____. 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 date on which distributions are payable in
accordance with this Section 401(a) a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property, and, as a practical matter, the Distributions
on the Trust Securities shall be payable at a rate of ___% per annum of the
Liquidation Amount of the Trust Securities. The amount of Distributions payable
for any full [monthly] [quarterly] [semi-annual] period shall be computed on the
basis of a [360-day year] of twelve [30-day] months. [If the interest payment
period for the Debentures is extended pursuant to Section 311 of the Indenture
or the Debentures, 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
extended interest payment period is equal to the aggregate amount of interest
(including interest payable on unpaid interest at the rate of ___% of the
Liquidation Amount of the Trust Securities per annum, compounded [monthly]
[quarterly] [semi-annually]) that accrues during any such extended interest
payment period on the Debentures.] The amount of Distributions for any partial
period shall be computed on the basis of the number of days elapsed in a 360-
day year of twelve 30-day months. The amount of Distributions payable for any
period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with
respect to a Distribution Date shall be payable to the Holders
21
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be one Business Day prior to such
Distribution Date; provided, however, that in the event that the Preferred
-------- -------
Securities do not remain in book-entry-only form, the relevant record date shall
be the date 15 days prior to the relevant Distribution Date.
Section 402. Redemption.
----------
(a) On each Debenture Redemption Date and on the stated
maturity of the Debentures, the Trust will be required to redeem a Like Amount
of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the identification and the total
Liquidation Amount of the particular Trust Securities to be
redeemed; and
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to
be redeemed and that distributions thereon will cease to
accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
22
(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 402(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 and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders thereof.
If the Preferred Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 402(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the holders thereof upon surrender of their 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 Register
for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price and
any Distribution payable on or prior to the Redemption Date, 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 will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities will continue to accrue, at the then
applicable rate, from the Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust
Securities shall be made to the recordholders thereof as they
23
appear on the Securities Register for the Trust Securities on the relevant
record date, which shall be one Business Day prior to the relevant Redemption
Date; provided, however, that in the event that the Preferred Securities do not
-------- -------
remain in book-entry-only form, the relevant record date shall be the fifteenth
day prior to the Redemption Date.
(f) Subject to Section 403(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 upon 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 as the Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $25 or an
integral multiple of $25 in excess thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25. The Property Trustee
shall promptly notify the Security 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.
Section 403. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made subject to Section 4.2(f) pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
-------- -------
Redemption Date a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions
24
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price of, Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Debenture Event of
Default, the Holder of Common Securities will be deemed to have waived any right
to act with respect to any such Event of Default under this Trust Agreement
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 Event
of Default under this Trust Agreement with respect to the Preferred Securities
has 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 404. Payment Procedures.
------------------
Payments in respect of the Preferred Securities shall be made
by check mailed to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Preferred Securities are
held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, 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 Common Securityholder.
Section 405. Tax Returns and Reports.
-----------------------
The Administrative Trustees shall prepare (or cause to be
prepared), at the Depositor's expense, and file all Federal, state and local tax
and information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees 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
-
25
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 and the Property Trustee
with a copy of all such returns, reports and schedules promptly after such
filing or furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 406. Payment of Taxes, Duties, Etc. of
---------------------------------
the Trust.
---------
Upon receipt under the Debentures of Additional Sums (as
defined in the Indenture), the Property Trustee shall promptly pay any taxes,
duties or governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trust by the United States or any other taxing authority.
Section 407. Payments under Indenture.
------------------------
Any amount payable hereunder to any Holder of Preferred
Securities (and any Owner with respect thereto) shall be reduced by the amount
of any corresponding payment such Holder (and Owner) has directly received
pursuant to Section 508 of the Indenture.
ARTICLE V
TRUST SECURITIES CERTIFICATES
-----------------------------
Section 501. Initial Ownership.
-----------------
Upon the formation of the Trust and the contribution by the
Depositor pursuant to Section 203 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 502. The Trust Securities Certificates.
---------------------------------
The Preferred Securities Certificates shall be issued in
minimum denominations of $25 Liquidation Amount and integral multiples of $25 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $25 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of
26
the Trust by manual signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 504, 511
and 513.
Section 503. Delivery of Trust Securities Certificates.
-----------------------------------------
On the Closing Date [and on any date on which Preferred
Securities are required to be delivered pursuant to the exercise of the
overallotment option provided for in the Underwriting Agreement], the
Administrative Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 204 and 205, 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, any senior
vice president or any vice president, treasurer or assistant treasurer or
controller without further corporate action by the Depositor, in authorized
denominations.
Section 504. Registration of Transfer and Exchange
-------------------------------------
of Preferred Securities Certificates.
------------------------------------
The Securities Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 508, a Securities Register
in which, subject to such reasonable regulations as it may prescribe, the
Securities Registrar shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 510 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The Bank
shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
27
maintained pursuant to Section 508, the Administrative Trustees or any one of
them shall execute and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of execution
by such Administrative Trustee or Trustees. The Securities Registrar shall not
be required to register the transfer of any Preferred Securities that have been
called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 508.
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 cancelled and
subsequently disposed of by the Administrative Trustees in accordance with their
customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
Section 505. Mutilated, Destroyed, Lost or Stolen Trust
------------------------------------------
Securities Certificates.
-----------------------
If (a) any mutilated Trust Securities Certificate shall be
-
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
-
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Cer-
28
tificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 506. Persons Deemed Securityholders.
------------------------------
The Administrative Trustees or the Securities Registrar shall
treat the Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving distributions and for all other
purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 507. Access to List of Securityholders'
---------------------------------
Names and Addresses.
-------------------
The Administrative Trustees or the Depositor shall furnish or
cause to be furnished (a) to the Property Trustee, semi-annually on or before
-
January 15 and July 15 in each year, a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent Record Date and (b) to the Property
-
Trustee, promptly after receipt by any Administrative Trustee or the Depositor
of a request therefor from the Property Trustee in order to enable the Property
Trustee to discharge its obligations under this Trust Agreement, in each case
to the extent such information is in the possession or control of the
Administrative Trustees or the Depositor and is not identical to a previously
supplied list or has not otherwise been received by the Property Trustee in its
capacity as Securities Registrar. The rights of Securityholders to communicate
with other Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities, and the corresponding rights of the
Trustee shall be as provided in the Trust Indenture Act. Each Holder, by
receiving and holding a Trust Securities Certificate, and each Owner shall be
deemed to have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees
29
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 508. Maintenance of Office or Agency.
-------------------------------
The Administrative Trustees shall maintain in The City of New
York, an office or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative Trustees initially
designate the Harris Trust Company, 77 Water Street, Fourth Floor, New York, New
York, 10005, as its principal corporate trust office for such purposes. The
Property Trustee 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 509. Appointment of Paying Agent.
---------------------------
The Paying Agent shall make distributions to Securityholders
from the Payment Account and shall report the amounts of such distributions to
the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent if such Trustees
determine in their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Trust Agreement in any material respect. The
Paying Agent shall initially be the Bank, and any co-paying agent chosen by the
Bank, and acceptable to the Administrative Trustees and the Depositor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees, the Property Trustee and
the Depositor. In the event that the Bank shall no longer be the Paying Agent or
a successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees
to execute and deliver to the Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Trustees that as
Paying Agent, such successor Paying Agent or additional Paying
30
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 801, 803 and 806 shall apply to the Bank
also in its role as Paying Agent, for so long as the Bank shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 510. Ownership of Common Securities by Depositor
-------------------------------------------
On the Closing Date and on each other date provided for in
Section 205, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law,
other than a transfer in connection with a consolidation or merger of the
Depositor into another corporation, or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 801 of the Indenture, any attempted transfer of the
Common Securities 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".
Section 511. 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 beneficial owner will receive a Definitive Preferred Securities
Certificate representing such beneficial owner's interest in such Preferred
Securities, except as provided in Section 513. Unless and until Definitive
Preferred Securities Certificates have been issued to beneficial owners pursuant
to Section 513:
31
(i) the provisions of this Section 511(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 511
conflict with any other provisions of this Trust Agreement, the
provisions of this Section 511 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 513, the initial 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 512. Notices to Clearing Agency.
--------------------------
To the extent that a notice or other communication to the
Owners is required under this Trust Agreement, unless and until Definitive
Preferred Securities Certificates shall have been issued to Owners pursuant to
Section 513, 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.
32
Section 513. Definitive Preferred Securities
-------------------------------
Certificates.
------------
If (a) 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, (b) the Depositor at its
-
option advises the Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence of a
-
Debenture Event of Default, Owners of Preferred Securities Certificates
representing beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Administrative Trustees in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interest of the Owners of Preferred Securities Certificates, then the
Administrative Trustees shall notify the Clearing Agency and the Clearing Agency
shall notify all Owners of Preferred Securities Certificates and the other
Trustees of the occurrence of any such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same. Upon surrender to the 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 514. 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 209,
and the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by
33
their Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
-----------------------------------------
Section 601. Limitations on Voting Rights.
----------------------------
(a) Except as provided in this Section, in Sections 810 and
1002 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
-
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Debenture Trustee with respect to
such Debentures, (ii) waive any past default which is waivable under Section 513
--
of the Indenture, (iii) exercise any right to rescind or annul a declaration
---
that the principal of all the Debentures shall be due and payable or (iv)
--
consent to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of at least a majority in
Liquidation Amount of all outstanding Preferred Securities; provided, however,
-------- -------
that where a consent under the Indenture would require the consent of each
holder of Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote
34
of the Preferred Securities, except by a subsequent vote of the Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for United
States federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
-
adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
--
the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class 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.
Section 602. Notice of Meetings.
------------------
Notice of all meetings of the Preferred Securityholders,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 1008 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 603. 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 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
35
of Preferred Securityholders to vote on any matters as to which the 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
more than 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 604. Voting Rights.
-------------
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 605. Proxies, etc.
------------
At any meeting of Securityholders, any Securityholder
entitled to vote thereat may vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed 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.
36
Section 606. Securityholder Action by Written
--------------------------------
Consent.
-------
Any action which may be taken by Securityholders at a meeting
may be taken without a meeting if Securityholders holding more than a majority
of all Outstanding Trust Securities (based upon their Liquidation Amount)
entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing.
Section 607. Record Date for Voting and Other
--------------------------------
Purposes.
--------
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent, or to
participate in any distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, 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 a 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 608. Acts of Securityholders.
-----------------------
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement to
be given, made or taken by Securityholders or Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders or Owners in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such action shall
become effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders or Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
801) 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
37
public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged
to him the execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which any Trustee
receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
liquidation amount.
If any dispute shall arise between the Securityholders and
the Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder
or Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly
against the Depositor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee (as defined in the Guarantee), the Trust or any person or entity.
38
Section 609. Inspection of Records.
---------------------
Upon reasonable notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 701. Representations and Warranties of
---------------------------------
the Bank, the Property Trustee and
----------------------------------
the Delaware Trustee.
--------------------
The Bank, the Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that:
(a) the Bank is a Delaware State corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware;
(b) the Bank has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Bank and constitutes the valid and legally binding
agreement of the Bank enforceable against 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 Bank of
this Trust Agreement has been duly authorized by all necessary
corporate or other action on the part of the Bank, the Property
Trustee, and the Delaware Trustee and does not require any approval of
stockholders of the Bank and such execution, delivery and performance
will not (i) violate the Bank's Charter or By-laws, (ii) violate any
- --
provision of, or constitute, with or without notice or lapse of time, a
default under, or result in
39
the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to
which the Property Trustee, the 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 Bank, the Property
Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee, the Bank
or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the
Bank of this Trust Agreement nor the consummation of any of the
transactions by the Bank, the Property Trustee, or the Delaware Trustee
(as appropriate in context) contemplated herein or therein requires the
consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to any governmental
authority or agency under any existing federal law governing the
banking or trust powers of the Bank under the laws of the United States
or the State of Delaware;
(f) there are no proceedings pending or, to the best of each
of the Bank's and the Delaware Trustee's knowledge, threatened against
or affecting the Bank, the Property Trustee or the Delaware Trustee in
any court or before any governmental authority, agency or arbitration
board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right,
power and authority of the Bank to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Section 702. Representations and Warranties of
---------------------------------
Depositor.
---------
The Depositor hereby represents and warrants for the benefit
of the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been, [and any Trust Securities
Certificates to be issued at the time of exercise, if any, of the
overallotment option under the Underwriting Agreement will be,] duly
authorized and will have been, [as of each such date,] duly and validly
executed, issued and delivered by the Trustees pursuant
40
to the terms and provisions of, and in accordance with the requirements
of, this Trust Agreement and the Securityholders will be, as of each
such date, entitled to the benefits of this Trust Agreement; and
(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.
ARTICLE VIII
THE TRUSTEES
------------
Section 801. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release the Property
Trustee from liability for its own negligent action, its own failure to act, or
its own willful misconduct. To the extent that, at law or in equity, an
Administrative Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, such Administrative
Trustee shall not be liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Administrative Trustees.
41
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of any Trust
Security. This Section 801(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;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) the Property Trustee shall not be liable for
any interest on any money received by it except as it may
42
otherwise agree with the Depositor. Money held by the Property Trustee
need not be segregated from other funds held by it except in relation
to the Payment Account maintained by the Property Trustee pursuant to
Section 3.01 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
Section 802. Notice of Defaults.
------------------
Within five Business Days after the occurrence of any Event of
Default actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 1008, notice of
such Event of Default to the Securityholders, the Administrative Trustees and
the Depositor, unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to extend the interest payment period for the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 1008, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
Section 803. Certain Rights of Property Trustee.
----------------------------------
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) if, (i) in performing its duties under this
-
Trust Agreement the Property Trustee is required to
43
decide between alternative courses of action or (ii) in construing any
--
of the provisions in this Trust Agreement the Property Trustee finds
the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of
---
any provision of this Trust Agreement, then, except as to any matter as
to which the 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;
(c) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officer's
Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officer's Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or reregistration
thereof;
44
(f) the Property Trustee may consult with counsel and the
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon and in accordance with
such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees. The Property Trustee
shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall
have offered to the Property Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Securityholders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as it
may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, provided that the Property Trustee
--------
shall be responsible for its own negligence or recklessness with
respect to selection of any agent or attorney appointed by it
hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
-
Holders of the Trust Securities which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under
the terms
45
of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such
--
other action until such instructions are received, and (iii) shall be
---
protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 804. 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 Depositor of the proceeds of the
Debentures.
Section 805. May Hold Securities.
-------------------
Except as provided in the definition of the term "Outstanding"
in Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 808 and 813, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 806. Compensation; Indemnity; Fees.
-----------------------------
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any
46
provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify each of the Trustees or any predecessor
Trustee for, and to hold the Trustees harmless against, any loss,
damage, claims, liability, penalty or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
No Trustee may claim any lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 806.
Section 807. Corporate Property Trustee Required;
-----------------------------------
Eligibility of Trustees.
-----------------------
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, 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
47
Securities. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
-
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
--
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
Section 808. 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 809. Co-Trustees and Separate Trustee.
--------------------------------
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Depositor and the
Administrative Trustees, by agreed action of the majority of such Trustees,
shall have power to appoint, and upon the written request of the Administrative
Trustees, the Depositor shall for such purpose join with the Administrative
Trustees in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to the extent required by law to
act as separate trustee of any such property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Depositor does not join in such ap pointment within 15 days after the receipt by
it of a request so to do, or in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee
48
appointed pursuant to this Section shall either be (i) a natural person who is
-
at least 21 years of age and a resident of the United States or (ii) a legal
--
entity with its principal place of business in the United States that shall act
through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees specified
hereunder, shall be exercised, solely by such Trustees and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case an Event of Default
under the Indenture 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
49
the written request of the Property Trustee, the Depositor shall join
with the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other trustee hereunder.
(e) The Property Trustee shall not be liable by
reason of any act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 810. Resignation and Removal; Appointment of
---------------------------------------
Successor.
---------
No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 811.
Any Trustee may resign at any time with respect to the Trust
Securities by giving written notice thereof to the Securityholders. If the
instrument of acceptance by the successor Trustee required by Section 811 shall
not have been delivered to the Relevant Trustee within 30 days after the giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee with respect to the Trust Securities.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
50
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees with respect to the Trust Securities and the Trust, and the retiring
Trustee shall comply with the applicable requirements of Section 811. If the
Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when a Debenture Event of Default is continuing,
the Preferred Securityholders, by Act of the Securityholders of a majority in
Liquidation Amount of the Preferred Securities then Outstanding delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees with respect to the Trust Securities and the Trust, and such
successor Trustee shall comply with the applicable requirements of Section 811.
If an Administrative Trustee shall resign, be removed or become incapable of
acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder shall appoint a
successor or Administrative Trustees. If no successor Relevant Trustee with
respect to the Trust Securities shall have been so appointed by the Common
Securityholder or the Preferred Securityholders and accepted appointment in the
manner required by Section 811, any Securityholder who has been a Securityholder
of Trust Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 1008 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (a) the unanimous act of
-
51
remaining Administrative Trustees if there are at least two of them or
(b) otherwise by the Depositor (with the successor in each case being a Person
-
who satisfies the eligibility requirement for Administrative Trustees set forth
in Section 807).
Section 811. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee
such successor Trustee so appointed shall execute, acknowledge and deliver to
the Trust and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee with respect to the Trust Securities and the Trust, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
-
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and (b) shall add to or change any of the provisions of this Trust
-
Agreement as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees of the same trust and that each such Relevant Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further
52
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Relevant Trustee with respect to the Trust Securities
and the Trust; but, on request of the Trust or any successor Relevant Trustee
such retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property, all proceeds thereof and money
held by such retiring Relevant Trustee hereunder with respect to the Trust
Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 812. Merger, Conversion, Consolidation
---------------------------------
or Succession to Business.
-------------------------
Any corporation into which the Property Trustee, the Delaware
Trustee or any Administrative Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
Section 813. Preferential Collection of Claims
---------------------------------
Against Depositor or Trust.
--------------------------
If and when the Property Trustee or the Delaware Trustee shall
be or become a creditor of the Depositor or the Trust (or any other obligor upon
the Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
53
Section 814. Reports by Property Trustee.
---------------------------
(a) Within 60 days after December 31 of each year commencing
with December 31, ____ the Property Trustee shall transmit to all
Securityholders in accordance with Section 1008, and to the Depositor, a brief
report dated as of such December 31 with respect to:
(i) its eligibility under Section 807 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the twelve-
month period (or, in the case of the initial report, the period since
the Closing Date) ending with such December 31 or, if the Property
Trustee has not complied in any material respect with such obligations,
a description of such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken
by the Property Trustee in the performance of its duties hereunder
which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each stock
exchange upon which the Trust Securities are listed, with the Commission and
with the Depositor.
Section 815. 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) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
54
Section 816. Evidence of Compliance with Conditions
--------------------------------------
Precedent.
---------
Each of the Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Trust
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given
in the form of an Officers' Certificate.
Section 817. Number of Trustees.
------------------
(a) The number of Trustees shall be four, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 817(a), or
if the number of Trustees is increased pursuant to Section 817(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 810.
(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 810, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 818. 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 207(a), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
55
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
-----------------------------------
Section 901. Termination Upon Expiration Date.
--------------------------------
Unless earlier terminated, the Trust shall au tomatically
terminate on December 31, ____ (the "Expiration Date"), following the
distribution of the Trust Property in accordance with Section 904.
Section 902. Early Termination.
-----------------
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect
of, or the dissolution or liquidation of, the Depositor;
(b) the occurrence of a Tax Event or an Investment Company
Event (each, a "Special Event"), or the Trust is or will not be taxed
as a grantor trust but a Tax Event has not occurred (a "Grantor Trust
Event"), and written direction is given to the Property Trustee from
the Depositor within 45 days of such Special Event or Grantor Trust
Event (which direction is optional and wholly within the discretion of
the Depositor) to terminate the Trust and distribute Debentures to
Securityholders in accordance with Section 904;
(c) the redemption of all of the Preferred Securities; and
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
56
Section 903. Termination.
-----------
The respective obligations and responsibilities of the
Trustees and the Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property Trustee
-
to Securityholders upon the liquidation of the Trust pursuant to Section 904, or
upon the redemption of all of the Trust Securities pursuant to Section 402, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities; (b) the payment of any expenses owed by the Trust; 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 904. Liquidation.
-----------
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 902 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 904(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid, mailed not later than
30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 904(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
57
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
-
outstanding, (ii) certificates representing a Like Amount of Debentures will be
--
issued to holders of Trust Securities Certificates, upon surrender of such
certificates to the Administrative Trustees or their agent for exchange, (iii)
---
the Depositor shall use its reasonable efforts to have the Debentures listed on
the New York Stock Exchange or on such other exchange as the Preferred
Securities are then listed, (iv) any Trust Securities Certificates not so
--
surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to holders of Trust Securities Certificates with respect to such
Debentures) and (v) all rights of Securityholders holding Trust Securities will
-
cease, except the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 904, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders will be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Dis-
58
tribution"). If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
Section 905. Mergers, Consolidations, Amalgamations or
-----------------------------------------
Replacements of the Trust.
-------------------------
The Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 905. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the holders of the Preferred
Securities, the Trust may merge with or into, consolidate, amalgamate, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to a trust organized as such under the laws of any State;
provided, that (i) such successor entity either (a) expressly assumes all of the
- -------- - -
obligations of the Trust with respect to the Preferred Securities or (b)
-
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) the Depositor expressly appoints a trustee of such successor
--
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed, or any
---
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any, (iv) such merger, consolidation,
--
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
-
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose identical to that of the
--
Trust, (vii)
---
59
prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of Counsel to the
effect that (a) such merger, consolidation, amalgamation, replacement,
-
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
-
consolidation, amalgamation , replacement, conveyance, transfer or lease,
neither the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
----
Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
Section 1001. Limitation of Rights of Security holders.
----------------------------------------
The death or incapacity of any person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate this
Trust Agreement, nor entitle the legal representatives or heirs of such person
or any Securityholder for such person, to claim an accounting, take any action
or bring any proceeding in any court for a partition or winding up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 1002. 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 or therein
-
which may be
60
inconsistent with any other provision herein or therein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, 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 be classified for Federal income tax purposes as a grantor trust at all
times that any Trust Securities are outstanding or to ensure that the Trust will
not be required to register as an "investment company" under the 1940 Act;
provided, however, that in the case of clause (i), such action shall not
- -------- -------
adversely affect in any material respect the interests of any Securityholder,
and any amendments of this Trust Agreement shall become effective when notice
thereof is given to the Securityholders.
(b) Except as provided in Section 1002(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Trust Securityholders representing not less
-
than a majority (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 federal income tax purposes or the Trust's exemption from
status of an "investment company" under the 1940 Act.
(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 603 or 606 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
-
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as of
a specified date or (ii) restrict the right of a Securityholder to institute
--
suit for the enforcement of any such payment on or after such date;
notwithstanding any other provision herein without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 603 or
606 hereof), this paragraph (c) of this Section 1002 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the 1940 Act.
61
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officer's Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
Section 1003. 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 1004. GOVERNING LAW.
-------------
This Trust Agreement and the rights and obligations of each of
the Securityholders, the Trust and the Trustees with respect to this Trust
Agreement and the Trust Securities shall be construed in accordance with and
governed by the laws of the State of Delaware.
Section 1005. Payments Due on Non-Business Day.
--------------------------------
If the date fixed for any payment on any Trust Security shall
be a day which is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day which is a Business Day (except
as otherwise provided in Section 401(a)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
Section 1006. Successors.
----------
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Trust or the Relevant
Trustee, including any successor by
62
operation of law. Except in connection with a consolidation, merger or sale
involving the Depositor that is permitted under Article Eight of the Indenture
and pursuant to which the assignee agrees in writing to perform the Depositor's
obligations hereunder, the Depositor shall not assign its obligations hereunder.
Section 1007. Headings.
--------
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
Section 1008. Reports, Notices and Demands.
----------------------------
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
-
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and
(b) in the case of the Common Securityholder or the Depositor, to ITT Hartford
-
Group, Inc., Hartford Plaza, Hartford, Connecticut 06115, Attention: Treasurer,
facsimile no.: (860) 547-5966. Any notice to Preferred Securityholders shall
also be given to such owners as have, within two years preceding the giving of
such notice, filed their names and addresses with the Property Trustee for that
purpose. Such notice, demand or other communication to or upon a Securityholder
shall be deemed to have been sufficiently given or made, for all purposes, upon
hand delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon the Trust, the Property Trustee or the Administrative Trustees shall
be given in writing addressed (until another address is published by the Trust)
as follows: (a) with respect to the Property Trustee to Wilmington Trust
-
Company, 1105 Market Street, Wilmington, Delaware, Attention: Corporate Trust
Department; (b) with respect to the Delaware Trustee, to Wilmington Trust
-
Company, 1105 Market Street, Wilmington, Delaware, Attention: Corporate Trust
Department; and (c) with respect to the Administrative Trustees, to them at the
-
address above for notices to the Depositor, marked "Attention: Administrative
Trustees of Hartford Capital IV." Such notice, demand or
63
other communication to or upon the Trust or the Property Trustee shall be deemed
to have been sufficiently given or made only upon actual receipt of the writing
by the Trust or the Property Trustee.
Section 1009. Agreement Not to Petition.
-------------------------
Each of the Trustees and the Depositor agree for the benefit
of the Securityholders that, until at least one year and one day after the Trust
has been terminated in accordance with Article IX, they shall not file, or join
in the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 1009, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 1009 shall survive the
termination of this Trust Agreement.
Section 1010. Trust Indenture Act; Conflict with
----------------------------------
Trust Indenture Act.
-------------------
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed
64
to apply to this Trust Agreement as so modified or to be
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 1011. Acceptance of Terms of Trust Agreement,
--------------------------------------
Guarantee and Indenture.
-----------------------
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
ITT HARTFORD GROUP, INC.
By: _________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Property Trustee
and Delaware Trustee
By: _______________________
Name:
Title:
-------------------------
as Administrative Trustee
-------------------------
as Administrative Trustee
65
EXHIBIT A
CERTIFICATE OF TRUST
OF
HARTFORD CAPITAL IV
THIS CERTIFICATE OF TRUST of Hartford Capital IV
(the "Trust"), dated _________, 1995, is being duly executed
and filed by the undersigned, as trustees, to form a business
trust under the Delaware Business Trust Act (12 Del. C. (S)
3801 et seq.).
1. Name. The name of the business trust being
formed hereby is Hartford Capital IV.
2. Delaware Trustee. The name and business address
of the trustee of the Trust with a principal place of business
in the State of Delaware are Wilmington Trust Company, 1105
Market Street, Wilmington, Delaware, Attention: Corporate
Trust Department.
3. Effective Date. This Certificate of Trust shall
be effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of
the Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
as Trustee
By: _________________________
Name:
Title:
A-1
EXHIBIT B
--------- ---, ----
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099.
Attention:________________________
General Counsel's Office
Re: Hartford Capital IV [Quarterly] Income Preferred Securities
-----------------------------------------------------------
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust Company ("DTC")
of the Hartford Capital IV _________% Cumulative [Quarterly] Income Preferred
Securities, Series A (the "Preferred Securities"), of Hartford Capital IV, a
Delaware business trust (the "Issuer"), formed pursuant to a Trust Agreement
between ITT Hartford Group, Inc. ("Hartford") and Wilmington Trust Company, as
Trustee. The payment of distributions on the Preferred Securities to the extent
the Issuer has funds available for the payment thereof, and payments due upon
liquidation of Issuer or redemption of the Preferred Securities are guaranteed
by Hartford to the extent set forth in a Guarantee Agreement dated __________
__, ____ by Hartford with respect to the Preferred Securities. Hartford and the
Issuer propose to sell the Preferred Securities to certain Underwriters (the
"Underwriters") pursuant to an Underwriting Agreement dated __________ __, 1995
by and among the Underwriters, the Issuer and Hartford dated _________ __, ____,
and the Underwriters wish to take delivery of the Preferred Securities through
DTC. __________ is acting as transfer agent and registrar with respect to the
Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible
for deposit at DTC, and to act in accordance with DTC's rules with respect to
the Preferred Securities, the Issuer, the Transfer Agent and Registrar and DTC
agree among each other as follows:
1. Prior to the closing of the sale of the Preferred
Securities to the Underwriters, which is expected to
B-1
occur on or about _________ __, ____, there shall be deposited with DTC one or
more global certificates (individually and collectively, the "Global
Certificate") registered in the name of DTC's Preferred Securities nominee, Cede
& Co., representing an aggregate of _____________ Preferred Securities and
bearing the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to Issuer or its agent for registration
of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as
is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the Issuer
provides for the voting by holders of the Preferred Securities under certain
limited circumstances. The Issuer shall establish a record date for such
purposes and shall, to the extent possible, give DTC notice of such record date
not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Preferred Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice of such event
at least 5 business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance
of rights with respect to, the Preferred Securities outstanding, the Issuer or
the Transfer Agent and Registrar shall send DTC a notice specifying: (a) the
-
amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
-
expiration or deadline date, or any date by which any action on the part of the
holders of Preferred Securities is required; and (c) the date any required
-
notice is to be mailed by or on behalf of the Issuer to holders of Preferred
Securities or published by or on behalf of the
B-2
Issuer (whether by mail or publication, the "Publication Date"). Such notice
shall be sent to DTC by a secure means (e.g., legible telecopy, registered or
----
certified mail, overnight delivery) in a timely manner designed to assure that
such notice is in DTC's possession no later than the close of business on the
business day before the Publication Date. The Issuer or the Transfer Agent and
Registrar will forward such notice either in a separate secure transmission for
each CUSIP number or in a secure transmission of multiple CUSIP numbers (if
applicable) that includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be not less than 30 calendar days nor more than 60
calendar days prior to the payment of any such distribution or any such offering
or issuance of rights with respect to the Preferred Securities. After
establishing the amount of payment to be made on the Preferred Securities, the
Issuer or the Transfer Agent and Registrar will notify DTC's Dividend Department
of such payment 5 business days prior to payment date. Notices to DTC's Dividend
Department by telecopy shall be sent to (212) 709-1723. Such notices by mail or
by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice
B-3
shall be confirmed by telephoning (516) 227-4070. Notice by
mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes), shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain
the CUSIP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "Hartford Capital IV _____% Cumulative [Quarterly] Income Preferred
Securities."
8. Distribution payments or other cash payments with respect
to the Preferred Securities evidenced by the Global Certificate shall be
received by Cede & Co., as nominee of DTC, or its registered assigns in next day
funds on each payment date (or in accordance with existing arrangements between
the Issuer or the Transfer Agent and Registrar and DTC). Such payments shall be
made payable to the order of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
B-4
9. DTC may by prior written notice direct the Issuer and the
Transfer Agent and Registrar to use any other telecopy number or address of DTC
as the number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
----
or the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Preferred Securities outstanding evidenced by the
Global Certificate, DTC, in its discretion: (a) may request the Issuer or the
-
Transfer Agent and Registrar to issue and countersign a new Global Certificate;
or (b) may make an appropriate notation on the Global Certificate indicating the
-
date and amount of such reduction.
11. DTC may discontinue its services as a securities
depositary with respect to the Preferred Securities at any time by giving at
least 90 days' prior written notice to the Issuer and the Transfer Agent and
Registrar (at which time DTC will confirm with the Issuer or the Transfer Agent
and Registrar the aggregate number of Preferred Securities deposited with it)
and discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Preferred Securities, make
available one or more separate global certificates evidencing Preferred
Securities to any Participant having Preferred Securities credited to its DTC
account, or issue definitive Preferred Securities to the beneficial holders
thereof, and in any such case, DTC agrees to cooperate fully with the Issuer and
the Transfer Agent and Registrar and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested by
the Issuer or the Transfer Agent and Registrar.
12. In the event that the Issuer determines that beneficial
owners of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with
B-5
any other documents of transfer reasonably requested by the
Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Nothing herein shall be deemed to require the Transfer Agent
and Registrar to advance funds on behalf of Hartford Capital IV.
Very truly yours,
HARTFORD CAPITAL IV
(As Issuer)
By: [Name of Trustee]
Administrative Trustee
By: _______________________
Name:
Title:
--------------------------
(As Transfer Agent and
Registrar)
By: _______________________
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By: __________________________
Authorized Officer
B-6
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
Hartford Capital IV
_____% Common Securities
(liquidation amount $25 per Common Security)
Hartford Capital IV, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that ITT
Hartford Group, 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 $25 per Common Security) (the "Common Securities"). In accordance with
Section 510 of the Trust Agreement (as defined below) the Common Securities are
not transferable and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust dated as of _______ ___, ____, 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.
C-1
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ______ day of ________ ____.
HARTFORD CAPITAL IV
By___________________________
Name:
Administrative Trustee
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EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ___________ ___, ____, between ITT
Hartford Group, Inc., a Delaware corporation ("Hartford"), and Hartford Capital
IV, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Hartford and to issue and
sell _____% Cumulative [Quarterly] Income 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 __________ __, ____ as the same may be amended from time to time (the
"Trust Agreement");
WHEREAS, Hartford will directly or indirectly own
all of the Common Securities of Trust and will issue the
Debentures;
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase Hartford hereby agrees shall
benefit Hartford and which purchase Hartford acknowledges will be made in
reliance upon the execution and delivery of this Agreement, Hartford and Trust
hereby agree as follows:
ARTICLE I
Section 101. Guarantee by Hartford.
---------------------
Subject to the terms and conditions hereof, Hartford 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 costs,
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
or such other similar interests, as the case may be. 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.
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Section 1.2. Term of Agreement.
-----------------
This Agreement shall terminate and be of no further force and
effect upon the later of (a) the date on which full payment has been made of all
amounts payable to all holders of all the Preferred Securities (whether upon
redemption, liquidation, exchange or otherwise) and (b) 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 Hartford and ___________ as
guarantee trustee or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.3. Waiver of Notice.
----------------
Hartford hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and Hartford hereby
waives presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.4. No Impairment.
-------------
The obligations, covenants, agreements and duties of Hartford
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
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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, Hartford with respect to the happening of any of the foregoing.
Section 1.5. Enforcement.
-----------
A Beneficiary may enforce this Agreement directly against
Hartford and Hartford waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against Hartford.
ARTICLE II
Section 2.1. Binding Effect.
--------------
All guarantees and agreements contained in this Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
Hartford and shall inure to the benefit of the Beneficiaries.
Section 2.2. 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 2.3. 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):
Hartford Capital IV
c/o Wilmington Trust Company
1105 Market Street
Wilmington, Delaware
Facsimile No.: (___) ________
Attention: Corporate Trust Department
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ITT Hartford Group, Inc.
Hartford Plaza
Hartford, Connecticut
Facsimile No.: (860) 547-5966
Attention: Treasurer
Section 2.4 This agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of New York.
THIS AGREEMENT is executed as of the day and year first above
written.
ITT HARTFORD GROUP, INC.
By:_______________________
Name:
Title:
HARTFORD CAPITAL IV
By:_______________________
Name:
Administrative
Trustee
D-4
EXHIBIT E
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT - This Preferred Security is a Global Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository.
This Preferred Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depository or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to Hartford Capital IV or its agent for registration of transfer, exchange
or payment, and any Preferred Security issued is registered in the name of Cede
& Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Certificate Number Number of Preferred Securities
P-
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Hartford Capital IV
______% Cumulative [Quarterly] Income Preferred Securities,
Series ___
(liquidation amount $25 per Preferred Security)
Hartford Capital IV, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
____________________ (the "Holder") is the registered owner of ______ (______)
preferred securities of the Trust representing an undivided beneficial interest
in the assets of the Trust and designated the Hartford Capital IV
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_____% Cumulative [Quarterly] Income Preferred Securities, Series __
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
504 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 _________ ___, ____, as the same may be amended from time to
time (the "Trust Agreement") including the designation of the terms of Preferred
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by ITT Hartford Group, Inc., a Delaware
corporation, and Wilmington Trust Company, as guarantee trustee, dated as of
________ ___, ____ (the "Guarantee"), to the extent provided therein. The Trust
will furnish a copy of the Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ______ day of __________, ____.
HARTFORD CAPITAL IV
By:____________________________
Name:
Administrative Trustee
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