Exhibit 4.15
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AMENDED AND RESTATED TRUST AGREEMENT
among
MUTUAL GROUP, LTD.,
as Depositor
[MUTUAL GROUP, LTD. or MUTUAL RISK MANAGEMENT LTD.],
as Issuer
THE CHASE MANHATTAN BANK,
as Property Trustee
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
as Administrative Trustees
__________________________
Dated as of _________________, 2000
__________________________
MRM CAPITAL TRUST [ ]
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TABLE OF CONTENTS
Page
ARTICLE I.
Defined Terms
SECTION 1.1. Definitions........................................................................... 1
ARTICLE II.
The Trust
SECTION 2.1. Name.................................................................................. 10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business........................... 10
SECTION 2.3. Initial Contribution of Trust Property; Fees, Costs and Expenses...................... 11
SECTION 2.4. Purposes of Trust..................................................................... 11
SECTION 2.5. Authorization to Enter into Certain Transactions...................................... 11
SECTION 2.6. Assets of Trust....................................................................... 14
SECTION 2.7. Title to Trust Property............................................................... 14
ARTICLE III.
Payment Account; Paying Agents
SECTION 3.1. Payment Account....................................................................... 14
SECTION 3.2. Appointment of Paying Agents.......................................................... 15
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions......................................................................... 15
SECTION 4.2. Redemption............................................................................ 16
SECTION 4.3. Subordination of Common Securities.................................................... 19
SECTION 4.4. Payment Procedures.................................................................... 19
SECTION 4.5. Withholding Tax....................................................................... 20
SECTION 4.6. Tax Returns and Reports............................................................... 20
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Trust........................................... 20
SECTION 4.8. Payments under Indenture or Pursuant to Direct Actions................................ 20
SECTION 4.9. Exchanges............................................................................. 20
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Article V.
Securities
SECTION 5.1. Initial Ownership.................................................................. 21
SECTION 5.2. Authorized Trust Securities........................................................ 21
SECTION 5.3. Issuance of the Common Securities; Subscription and Purchase of
Notes.......................................................................... 22
SECTION 5.4. Issuance of the Preferred Securities............................................... 22
SECTION 5.5. The Securities Certificates........................................................ 22
SECTION 5.6. Rights of Holders.................................................................. 23
SECTION 5.7. Book-Entry Preferred Securities.................................................... 23
SECTION 5.8. Registration of Transfer and Exchange of Preferred Securities
Certificates................................................................... 25
SECTION 5.9. Mutilated, Destroyed, Lost or Stolen Securities Certificates....................... 26
SECTION 5.10. Persons Deemed Holders............................................................. 27
SECTION 5.11. Cancellation....................................................................... 27
SECTION 5.12. Ownership of Common Securities by Depositor........................................ 27
ARTICLE VI.
Meetings; Voting; Acts Of Holders
SECTION 6.1. Notice of Meetings................................................................. 28
SECTION 6.2. Meetings of Holders of the Preferred Securities.................................... 28
SECTION 6.3. Voting Rights...................................................................... 28
SECTION 6.4. Proxies, Etc....................................................................... 29
SECTION 6.5. Holder Action by Written Consent................................................... 29
SECTION 6.6. Record Date for Voting and Other Purposes.......................................... 29
SECTION 6.7. Acts of Holders.................................................................... 29
SECTION 6.8. Inspection of Records.............................................................. 30
SECTION 6.9. Limitations on Voting Rights....................................................... 30
SECTION 6.10. Waivers of Past Defaults........................................................... 31
ARTICLE VII.
Representations and Warranties
SECTION 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee............................................................... 34
SECTION 7.2. Representations and Warranties of Depositor........................................ 35
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ARTICLE VIII.
The Trustees
SECTION 8.1. Number of Trustees................................................................ 35
SECTION 8.2. Property Trustee Required......................................................... 35
SECTION 8.3. Delaware Trustee Required......................................................... 36
SECTION 8.4. Appointment of Administrative Trustees............................................ 36
SECTION 8.5. Duties and Responsibilities of the Trustees....................................... 37
SECTION 8.6. Notices of Defaults and Extensions................................................ 38
SECTION 8.7. Certain Rights of Property Trustee................................................ 39
SECTION 8.8. Delegation of Power............................................................... 41
SECTION 8.9. May Hold Securities............................................................... 41
SECTION 8.10. Compensation; Reimbursement; Indemnity............................................ 42
SECTION 8.11. Conflicting Interests............................................................. 42
SECTION 8.12. Resignation and Removal; Appointment of Successor................................. 43
SECTION 8.13. Acceptance of Appointment by Successor............................................ 44
SECTION 8.14. Merger, Conversion, Consolidation or Succession to Business....................... 44
SECTION 8.15. Not Responsible for Recitals or Issuance of Securities............................ 45
SECTION 8.16. Preferential Collection of Claims Against Depositor or Trust...................... 45
SECTION 8.17. Property Trustee May File Proofs of Claim......................................... 45
SECTION 8.18. Reports by the Property Trustee................................................... 46
SECTION 8.19. Reports to the Property Trustee................................................... 46
SECTION 8.20. Evidence of Compliance with Conditions Precedent.................................. 46
ARTICLE IX.
Termination, Liquidation and Merger
SECTION 9.1. Dissolution Upon Expiration Date.................................................. 47
SECTION 9.2. Early Termination................................................................. 47
SECTION 9.3. Termination....................................................................... 47
SECTION 9.4. Liquidation....................................................................... 48
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of Trust................... 49
ARTICLE X.
Miscellaneous Provisions
SECTION 10.1. Limitation of Rights of Holders................................................... 50
SECTION 10.2. Agreed Tax Treatment of Trust and Trust Securities................................ 51
SECTION 10.3. Amendment......................................................................... 51
SECTION 10.5. Separability...................................................................... 52
SECTION 10.6. Governing Law..................................................................... 52
SECTION 10.7. Successors........................................................................ 53
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SECTION 10.8. Headings.......................................................................... 53
SECTION 10.9. Reports, Notices and Demands...................................................... 53
SECTION 10.10. Agreement Not to Petition......................................................... 54
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act............................ 54
Exhibit A Certificate of Trust
Exhibit B Form of Common Securities Certificate
Exhibit C Form of Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___________, 2000, among
(i) Mutual Group, Ltd., a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) [Mutual Group, Ltd./Mutual Risk Management
Ltd.], a [Delaware/ Bermuda] corporation (including any successors or assigns,
the "Issuer"), (iii) The Chase Manhattan Bank, a New York banking corporation,
as property trustee (in such capacity, the "Property Trustee" and, in its
separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iv) Chase Manhattan Bank Delaware, a Delaware banking corporation, as
Delaware trustee (in such capacity, the "Delaware Trustee"), (v) ____________,
an individual, _________, an individual and ___________, an individual, each of
whose address is c/o Mutual Group, Ltd., One Logan Square, Suite 1500,
Philadelphia Pennsylvania 19103 (each an "Administrative Trustee" and
collectively the "Administrative Trustees" and, together with the Property
Trustee and the Delaware Trustee, the "Trustees") and (vi) the several Holders,
as hereinafter defined.
Witnesseth
Whereas, the Depositor, the Property Trustee and the Delaware Trustee have
heretofore created a Delaware business trust pursuant to the Delaware Business
Trust Act by entering into a Trust Agreement, dated as of ________, 2000 (the
"Original Trust Agreement"), and by execution of and filing with the Secretary
of State of the State of Delaware the Certificate of Trust, filed on _________,
2000, substantially in the form attached as Exhibit A (the "Certificate of
Trust"); and
Whereas, the Depositor and the Trustees 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 and (iii) the acquisition by the
Trust from the Issuer of all of the right, title and interest in the Notes;
Now, Therefore, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
Defined Terms
Section 1.1 Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article;
(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) the words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have the meanings
assigned to them in accordance with United States generally accepted
accounting principles;
(e) unless the context otherwise requires, any reference to an
"Article," a "Section" or an "Exhibit" refers to an Article, a Section or
an Exhibit, as the case may be, of or to this Trust Agreement;
(f) the words "hereby," "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;
(g) a reference to the singular includes the plural and vice-versa;
and
(h) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
"Act" has the meaning specified in Section 6.7.
"Additional Interest" has the meaning specified in Section 1.1 of the
Indenture.
"Additional Interest Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest paid by the Issuer on a Like Amount of Notes for such period.
"Additional Tax Sums" has the meaning specified in Section 10.7 of the
Indenture.
"Additional Taxes" has the meaning specified in Section 1.1 of the
Indenture
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trust Agreement, solely in each
such Person's capacity as Administrative Trustee of the Trust and not in such
Person's individual capacity, or any successor Administrative Trustee appointed
as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified
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Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Book-Entry Preferred Security, the rules and procedures of the
Depositary for such Book-Entry Preferred Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person 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, state or foreign 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 filing by such Person of a petition or answer or consent seeking
reorganization or relief under any applicable federal, state or foreign
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" means all federal, state and foreign bankruptcy,
insolvency, reorganization and other similar laws, including the United States
Bankruptcy Code.
"Board of Directors" means the board of directors of the Depositor or any
other duly authorized committee of the board of directors of the Depositor.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification.
"Book-Entry Preferred Security" means a Preferred Security, the ownership
and transfer of which shall be made through book entries by a Depositary.
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"Business Day" means a day other than (a) a Saturday or 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 Corporate
Trust Office is closed for business.
"Closing Date" has the meaning specified in the Underwriting Agreement,
which date is also the date of execution and delivery of this Trust Agreement.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement.
"Corporate Trust Office" means the office of the Property Trustee at which
any particular time its corporate trust business shall be principally
administered, which office at the date of this Trust Agreement is located at 450
West 33rd Street, New York, New York 10001, Attention: Capital Markets Fiduciary
Services.
"Definitive Preferred Securities Certificates" means Preferred Securities
issued in certificated, fully registered form that are not Global Preferred
Securities.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code (S) 3801 et seq., or any successor statute thereto, in each
case as amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee
of the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor Delaware Trustee appointed as herein provided.
"Depositary" means an organization registered as a clearing agency under
the Exchange Act that is designated as Depositary by the Depositor or any
successor thereto. DTC will be the initial Depositary.
"Depositary Participant" means any member of, or participant in, the
Depositary.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement and any permitted successor and assigns.
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"Depositor Affiliate" has the meaning specified in Section 4.9.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"DTC" means The Depository Trust Company or any successor thereto.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such event 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 Note Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than
those specified in clause (b) or (c) above) and continuation of such
default or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Trustees and to the Depositor and the
Issuer by the Holders of at least 25% in aggregate Liquidation Amount of
the Outstanding Preferred Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder, unless Holders in aggregate
Liquidation Amount of Outstanding Preferred Securities not less than the
aggregate Liquidation Amount of Outstanding Preferred Securities that gave
such notice shall agree in writing to an extension of such period prior to
its expiration; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee if a successor Property Trustee has not been appointed within 90
days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, and any successor
statute thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Preferred Security" means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.
5
"Guarantee Agreement" means the Guarantee Agreement executed and delivered
by the Issuer [and, if Mutual Group is the Issuer, MRM] and The Chase Manhattan
Bank, as guarantee trustee, contemporaneously with the execution and delivery of
this Trust Agreement, for the benefit of the holders of the Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
are registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indemnified Person" has the meaning specified in Section 8.10(c).
"Indenture" means the Junior Subordinated Indenture executed and delivered
by the Issuer and the Note Trustee, as indenture trustee, [and if Mutual Group
is the Issuer, MRM, as guarantor,] contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the holders of the Notes,
as amended or supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, or any
successor statute thereto, in each case as amended from time to time.
"Issuer" means [Mutual Group or MRM].
"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 any Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Notes 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, (b) with respect to a distribution of Notes to Holders of
Trust Securities in connection with a dissolution of the Trust, Notes having a
principal amount equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such Notes are distributed and (c) with respect to any
distribution of Additional Interest Amounts to Holders of Trust Securities,
Notes having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
"Liquidation Date" means the date on which assets are to be distributed to
Holders in accordance with Section 9.4 hereunder following dissolution of the
Trust.
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, Preferred Securities representing more
than 50% of the aggregate Liquidation Amount of all then Outstanding Preferred
Securities.
6
"Mutual Group" means Mutual Group, Ltd., a Delaware corporation.
"MRM" means Mutual Risk Management Ltd., a company organized under the laws
of Bermuda.
"Note Event of Default" means any "Event of Default" specified in Section
5.1 of the Indenture.
"Note Redemption Date" means, with respect to any Notes to be redeemed
under the Indenture, the date fixed for redemption of such Notes under the
Indenture.
"Note Trustee" means the Person identified as the "Trustee" in the
Indenture, solely in its capacity as Trustee pursuant to the Indenture and not
in its individual capacity, or its successor in interest in such capacity, or
any successor Trustee appointed as provided in the Indenture.
"Notes" means the ____% Junior Subordinated Deferrable Interest Notes
issued by the Issuer pursuant to the Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Depositor, and delivered to the Trustees. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement (other than the certificate provided pursuant to Section
8.19) shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer 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 such officer in rendering the Officers'
Certificate;
(c) a statement that 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 such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Depositor or the Issuer or any Affiliate of the
Depositor or the Issuer.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
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"Outstanding," when used with respect to any Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent in trust for the Holders of such Trust Securities;
provided, that if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
the provisions of this Trust Agreement, unless proof satisfactory to the
Property Trustee is presented that any such Trust Securities are held by
Holders in whose hands such Trust Securities are valid, legal and binding
obligations of the Trust;
provided, that in determining whether the Holders of the requisite Liquidation
Amount of the Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, the Issuer, any Trustee or any Affiliate of
the Depositor, the Issuer or of any Trustee shall be disregarded and deemed not
to be Outstanding, except that (i) 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 (ii) the foregoing shall not apply at
any time when all of the Outstanding Preferred Securities are owned by the
Depositor, the Issuer, one or more of the Trustees and/or any such Affiliate.
Preferred Securities so owned that 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 the Issuer or
any Affiliate of the Depositor or the Issuer.
"Owner" means each Person who is the beneficial owner of Book-Entry
Preferred Securities as reflected in the records of the Depositary or, if a
Depositary Participant is not the beneficial owner, then the beneficial owner as
reflected in the records of the Depositary Participant.
"Paying Agent" means any Person authorized by the Administrative Trustees
to pay Distributions or other amounts in respect of any Trust Securities on
behalf of the Trust.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee for the benefit of the Holders in
which all amounts paid in respect of the Notes will be held and from which the
Property Trustee, through the Paying Agent, shall make payments to the Holders
in accordance with Sections 4.1 and 4.2.
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"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated association or government, or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit C.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement, solely in its capacity as Property Trustee
of the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor Property Trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided, that each Note Redemption Date and the maturity of the Notes shall be
a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Issuer upon the concurrent redemption of a Like Amount of
Notes.
"Securities Act" means the Securities Act of 1933, and any successor
statute thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.8.
"Trust" means the Delaware business trust known as "MRM Capital Trust
[ ], " which was created on ____________, 2000 under the Delaware Business Trust
Act pursuant to the Original Trust Agreement and the filing of the Certificate
of Trust, and continued pursuant to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (a) all exhibits and (b) for all purposes of this
Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are
9
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trustees" has the meaning specified in the preamble to this Trust
Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, that if 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 Notes, (b) any cash on deposit in, or owing
to, the Payment Account and (c) all proceeds and rights in respect of the
foregoing and any other 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.
"Underwriting Agreement" means any underwriting agreement, purchase
agreement or placement agreement executed and delivered by the Trust, the
Depositor, the Issuer [, and if Mutual Group is the Issuer, MRM, as guarantor]
and the underwriters named therein.
ARTICLE II.
The Trust
Section 2.1 Name.
The trust continued hereby shall be known as "MRM Capital Trust [ ]," as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
Section 2.2 Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Chase
Manhattan Bank Delaware, 1201 Market Street, 8th Floor, Wilmington, Delaware
19801, Attention: Capital Markets Fiduciary Services, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Holders, the Depositor, the Property Trustee and the Administrative
Trustees. The principal executive office of the Trust is c/o Mutual Group, Ltd.,
One Logan Square, Suite 1500, Philadelphia, Pennsylvania 19103, Attention:
____________, as such address may be changed from time to time by the
Administrative Trustees following written notice to the Holders and the other
Trustees.
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Section 2.3 Initial Contribution of Trust Property; Fees, Costs and
Expenses.
The Property Trustee acknowledges receipt 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 all fees, costs and expenses of
the Trust (except with respect to the Trust Securities) as they arise or shall,
upon request of any Trustee, promptly reimburse such Trustee for any such fees,
costs and expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such fees, costs or expenses.
Section 2.4 Purposes of Trust.
(a) The exclusive purposes and functions of the Trust are (i) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the Notes
and (ii) to engage in only those activities necessary or incidental thereto. The
Delaware Trustee, the Property Trustee and the Administrative Trustees are
trustees of the Trust, and have all the rights, powers and duties to the extent
set forth herein. The Trustees hereby acknowledge that they are trustees of the
Trust.
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trust (or the Trustees acting on behalf of the Trust)
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 Holders, except as expressly provided herein, (iii) incur
any indebtedness for borrowed money or issue any other debt, (iv) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property, (v) take or consent to any action that would reasonably be
expected to cause the Trust to become taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes, (vi)
take or consent to any action that would cause the Notes to be treated as other
than indebtedness of the Depositor for United States federal income tax purposes
or (vii) take or consent to any action that would cause the Trust to be deemed
to be an "investment company" required to be registered under the Investment
Company Act.
Section 2.5 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. 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 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;
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(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, such agreements as may be necessary or
desirable in connection with the purposes and function of the Trust;
(C) assisting in the sale of the Preferred Securities in one or
more transactions registered under the Securities Act or exempt from
registration under the Securities Act, and in compliance with
applicable state securities or blue sky laws;
(D) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and the
Notes to the Holders in accordance with this Trust Agreement;
(E) the appointment of a Paying Agent and Securities Registrar in
accordance with this Trust Agreement;
(F) execution of the Trust Securities on behalf of the Trust in
accordance with this Trust Agreement;
(G) execution and delivery of closing certificates, if any,
pursuant to the Underwriting Agreement and application for a taxpayer
identification number for the Trust;
(H) preparation and filing of all applicable tax returns and tax
information reports that are required to be filed on behalf of the
Trust;
(I) establishing a record date with respect to all actions to be
taken hereunder that require a record date to be established, except
as provided in Section 6.10(a);
(J) unless 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 the other Administrative Trustees) any
documents that the Administrative Trustees have the power to execute
pursuant to this Trust Agreement; and
(K) the taking of any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary
or advisable to give effect to the terms of this Trust Agreement.
(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 receipt and holding of legal title of the Notes;
(B) the establishment of the Payment Account;
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(C) the collection of interest, principal and any other payments
made in respect of the Notes and the holding of such amounts in the
Payment Account;
(D) the distribution through the Paying Agent of amounts
distributable to the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Notes in accordance with the terms of this Trust
Agreement;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Notes to the Holders 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; and
(I) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the Holders
(without consideration of the effect of any such action on any
particular Holder).
(b) In connection with the issuance 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) the execution and filing with the Commission of the registration
statement on Form S-3 prepared by the Depositor in relation to the
Preferred Securities, including any amendments thereto prepared by the
Depositor;
(ii) the execution and filing of any documents prepared by the
Depositor, or the taking of any acts as determined by the Depositor as
necessary in order to qualify or register all or part of the Preferred
Securities in any state in which the Depositor has determined to qualify or
register such Preferred Securities for sale;
(iii) the execution and filing of an application prepared by the
Depositor to the New York Stock Exchange or any other national stock
exchange or the Nasdaq Stock Market's National Market for listing upon
notice of issuance of any Preferred Securities;
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(iv) the execution and filing with the Commission of a registration
statement on Form 8-A prepared by the Depositor relating to the
registration of the class of Preferred Securities under Section 12(b) of
the Exchange Act, including any amendments thereto prepared by the
Depositor;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities in one or more transactions registered under the Securities Act
or exempt from registration under the Securities Act, and in compliance
with applicable state securities or blue sky laws; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(c) 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 taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes, so that the Notes will be treated as indebtedness of the Depositor for
United States federal income tax purposes and so that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act. In this connection, each Administrative Trustee is
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that such Administrative Trustee
determines in his or her 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 Outstanding Preferred Securities.
In no event shall the Administrative Trustees be liable to the Trust or the
Holders for any failure to comply with this section that results from a change
in law or regulation or in the interpretation thereof.
(d) An action taken by a Trustee in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Trust Agreement.
Section 2.6 Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.7 Title to Trust Property.
(a) Legal title to all Trust Property shall be vested at all times in the
Property Trustee and shall be held and administered by the Property Trustee in
trust for the benefit of the Trust and the Holders in accordance with this Trust
Agreement.
(b) The Holders shall not have any right or title to the Trust Property
other than the undivided beneficial interest in the assets of the Trust
conferred by their Trust Securities and they shall have no right to call for any
partition or division of property, profits or rights of the
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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.
ARTICLE III
Payment Account; Paying Agents
Section 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and the Paying Agent (subject to
Section 3.2) 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 Holders and for distribution as herein provided,
including (and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending distribution
thereof.
Section 3.2 Appointment of Paying Agents.
The Paying Agent shall initially be the Bank. The Paying Agent shall make
Distributions to Holders 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 solely for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove the Paying
Agent in their sole discretion. Any Person acting as Paying Agent may resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees and the
Property Trustee. If 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 (which shall be a bank or trust company) to
act as Paying Agent. Such successor Paying Agent appointed by the
Administrative Trustees shall execute and deliver to the Trustees an instrument
in which such successor Paying Agent shall agree with the Trustees that as
Paying Agent, such successor Paying Agent will hold all sums, if any, held by it
for payment to the Holders in trust for the benefit of the Holders entitled
thereto until such sums shall be paid to such Holders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon the resignation or
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections 8.5, 8.7, 8.9,
8.10 and 8.15 shall apply to the Bank 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
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Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
ARTICLE IV.
Distributions; Redemption
Section 4.1 Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Interest Amounts)
will be made on the Trust Securities at the rate and on the dates that payments
of interest (including any Additional Interest) are made on the Notes.
Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
shall accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from
__________, 2000, and, except as provided in clause (ii) below, shall be
payable quarterly in arrears on __________, __________, __________ and
__________ of each year, commencing on __________. If any date on which a
Distribution is otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next
succeeding day that is a Business Day (and without any interest or other
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 (each date on which distributions are
payable in accordance with this Section 4.1(a), a "Distribution Date");
(ii) in the event (and to the extent) that the Issuer exercises its
right under the Indenture to defer the payment of interest on the Notes,
Distributions on the Trust Securities shall be deferred;
(iii) Distributions shall accumulate in respect of the Trust
Securities at a rate of ____% per annum of the Liquidation Amount of the
Trust Securities. The amount of Distributions payable for any period less
than a full Distribution period shall be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days elapsed in a
partial month in a period. Distributions payable for each full Distribution
period will be computed by dividing the rate per annum by [four]. The
amount of Distributions payable for any period shall include any Additional
Interest Amounts in respect of such period; and
(iv) Distributions on the Trust Securities shall be made by the
Paying Agent 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.
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(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be at the close of business on the fifteenth day
(whether or not a Business Day) next preceding the relevant Distribution Date.
Distributions payable on any Trust Securities that are not punctually paid on
any Distribution Date as a result of the Issuer having failed to make an
interest payment under the Notes will cease to be payable to the Person in whose
name such Trust Securities are registered on the relevant record date, and such
defaulted Distributions and any Additional Interest Amounts will instead be
payable to the Person in whose name such Trust Securities are registered on the
special record date or other specified date for determining Holders entitled to
such defaulted Distribution and Additional Interest Amount established in
accordance with the Indenture.
Section 4.2. Redemption.
(a) On each Note Redemption Date and on the maturity of the Notes, the
Trust (subject, in the case of redemption, to the Property Trustee having
received notice of such redemption and of the principal amount to be redeemed
from the [Depositor/Issuer] no later than 15 days prior to such Note Redemption
Date) will be required to redeem a Like Amount of Trust Securities at the
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture, as
calculated by the Issuer, together with a statement that it is an estimate
and that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (and if an estimate is provided,
a further notice shall be sent of the actual Redemption Price on the date
that such Redemption Price is calculated);
(ii) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
particular Trust Securities to be redeemed;
(iv) 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 accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(v) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price; and
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(vi) such other provisions as the Property Trustee deems relevant.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Notes. 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.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then by 10:00 A.M., New York City time, on the Redemption
Date, the Issuer shall deposit or shall cause to be deposited sufficient funds
with the Property Trustee to pay the Redemption Price. If such deposit has been
made by such time, then by 12:00 noon, New York City time, on the Redemption
Date, the Property Trustee will, with respect to Book-Entry Preferred
Securities, irrevocably deposit with the Depositary for such Book-Entry
Preferred Securities, to the extent available therefor, funds sufficient to pay
the applicable Redemption Price and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Preferred Securities. With respect to Preferred Securities that are not Book-
Entry Preferred Securities, the Property Trustee will irrevocably deposit with
the Paying Agent, to the extent available therefor, 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 of the
Preferred Securities upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register 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 Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust
Securities 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
that is a Business Day (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 Issuer pursuant to the Guarantee Agreement, Distributions on such Trust
Securities will continue to accumulate, as set forth in Section 4.1, 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) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata to the Common Securities and the Preferred Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities
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to be redeemed shall be selected on a pro rata basis based upon their respective
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, provided, that so long as the Preferred Securities are Book-
Entry Preferred Securities, such selection shall be made in accordance with the
Applicable Procedures for the Preferred Securities by such Depositary. The
Property Trustee shall promptly notify the Securities Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
(f) The Trust in issuing the Trust Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Property Trustee shall indicate the
"CUSIP" numbers of the Trust Securities in notices of redemption and related
materials as a convenience to Holders; provided, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and
related materials.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including any Additional Interest Amounts)
on, the Redemption Price of, and the Liquidation Distribution in respect of, the
Trust Securities, as applicable, shall be made, pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, that if on any Distribution Date, Redemption Date or
Liquidation Date an Event of Default resulting from a Note Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
any Additional Interest Amounts) on, Redemption Price of, or Liquidation
Distribution in respect of any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Interest Amounts) on all Outstanding
Preferred Securities for all Distribution periods terminating on or prior
thereto, or in the case of payment of the Redemption Price the full amount of
such Redemption Price on all Outstanding Preferred Securities then called for
redemption, or in the case of payment of the Liquidation Distribution the full
amount of such Liquidation Distribution 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 any Additional Interest Amounts) on, or the Redemption
Price of, the Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from a
Note Event of Default, the Holders of the Common Securities shall have no 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 all such
Events of Default under this Trust Agreement with respect to the Preferred
Securities
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have been so cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities and not on
behalf of the Holders of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee to act
on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including any Additional Interest Amounts) or of
the Redemption Price, Liquidation Amount or any other amounts 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, at
the option of the Depositor, by wire transfer to accounts specified by the
Holders in accordance with procedures established by the Administrative Trustees
and acceptable to the Paying Agent. If the Preferred Securities are held by a
Depositary, such Distributions shall be made to the Depositary in immediately
available funds. Payments in respect of the Common Securities shall be made in
such manner as shall be mutually agreed between the Property Trustee and the
Holder of all the Common Securities.
Section 4.5. Withholding Tax.
The Trust and the Administrative Trustees shall comply with all withholding
and backup withholding tax requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding and backup withholding tax with respect to each Holder, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding and
backup withholding tax obligations. The Administrative Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding and backup withholding tax is properly established by a Holder,
shall remit amounts withheld with respect to the Holder to applicable
jurisdictions. To the extent that the Trust is required to withhold and pay over
any amounts to any authority with respect to Distributions or allocations to any
Holder, the amount withheld shall be deemed to be a Distribution in the amount
of the withholding to the Holder. In the event of any claimed overwithholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Trust may reduce subsequent Distributions by the amount of such
required withholding.
Section 4.6. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file on a timely basis all United States federal, state
and local tax and information returns and reports required to be filed by or in
respect of the Trust and prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms and returns
required to be provided by the Trust. The Administrative Trustees shall provide
the Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing.
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Section 4.7. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Notes of Additional Tax Sums and upon the written
direction of the Administrative Trustees, the Property Trustee shall promptly
pay, solely out of monies on deposit pursuant to this Trust Agreement, any
Additional Taxes imposed on the Trust by the United States or any other taxing
authority.
Section 4.8. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or any Owner
with respect thereto) has directly received pursuant to Section 5.8 of the
Indenture or Section 6.10(b) of this Trust Agreement.
Section 4.9. Exchanges.
(a) If at any time the Depositor, the Issuer or any of their Affiliates
(in either case, a "Depositor Affiliate") is the Owner or Holder of any
Preferred Securities, such Depositor Affiliate shall have the right to deliver
to the Property Trustee all or such portion of its Preferred Securities as it
elects and receive, in exchange therefor, a Like Amount of Notes. Such election
(i) shall be exercisable effective on any Distribution Date by such Depositor
Affiliate delivering to the Property Trustee a written notice of such election
specifying the Liquidation Amount of Preferred Securities with respect to which
such election is being made and the Distribution Date on which such exchange
shall occur, which Distribution Date shall be not less than ten Business Days
after the date of receipt by the Property Trustee of such election notice and
(ii) shall be conditioned upon such Depositor Affiliate having delivered or
caused to be delivered to the Property Trustee or its designee the Preferred
Securities that are the subject of such election by 10:00 A.M. New York time, on
the Distribution Date on which such exchange is to occur. After the exchange,
such Preferred Securities will be canceled and will no longer be deemed to be
Outstanding and all rights of the Depositor Affiliate with respect to such
Preferred Securities will cease.
(b) In the case of an exchange described in Section 4.9(a), the Trust
will,on the date of such exchange, exchange Notes having a principal amount
equal to a proportional amount of the aggregate Liquidation Amount of the
Outstanding Common Securities, based on the ratio of the aggregate Liquidation
Amount of the Preferred Securities exchanged pursuant to Section 4.9(a) divided
by the aggregate Liquidation Amount of the Preferred Securities Outstanding
immediately prior to such exchange, for such proportional amount of Common
Securities held by the Depositor (which contemporaneously shall be canceled and
no longer be deemed to be Outstanding); provided, that the Depositor delivers or
causes to be delivered to the Property Trustee or its designee the required
amount of Common Securities to be exchanged by 10:00 A.M. New York time, on the
Distribution Date on which such exchange is to occur.
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ARTICLE V.
Securities
Section 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
referred to in Section 2.3 and until the issuance of the Trust Securities, and
at any time during which no Trust Securities are Outstanding, the Depositor
shall be the sole beneficial owner of the Trust.
Section 5.2. Authorized Trust Securities.
The Trust shall be authorized to issue one series of Preferred Securities
having an aggregate Liquidation Amount of $__________ and one series of Common
Securities having an aggregate Liquidation Amount of $__________.
Section 5.3. Issuance of the Common Securities; Subscription and Purchase
of Notes.
On the Closing Date, an Administrative Trustee, on behalf of the Trust,
shall execute and the Property Trustee shall deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, evidencing an
aggregate of __________ Common Securities having an aggregate Liquidation Amount
of $__________, against receipt of the aggregate purchase price of such Common
Securities of $___________, to the Property Trustee. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe
for and purchase from the Issuer Notes, registered in the name of the Property
Trustee on behalf of the Trust and having an aggregate principal amount equal to
$__________, and, in satisfaction of the purchase price for such Notes, the
Property Trustee, on behalf of the Trust, shall deliver to the Issuer the sum of
$__________ (being the aggregate amount paid by the Holders for the Preferred
Securities and the amount paid by the Depositor for the Common Securities).
Section 5.4. Issuance of the Preferred Securities.
On _________, 2000, the Depositor, both on its own behalf and on behalf of
the Trust, pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. On the Closing Date, an Administrative Trustee, on
behalf of the Trust, shall execute, and the Property Trustee shall deliver to
the underwriters, Preferred Securities Certificates, registered in the names
requested by the underwriters, evidencing an aggregate of ________ Preferred
Securities having an aggregate Liquidation Amount of $_________, against receipt
of the aggregate purchase price of such Preferred Securities of $_________ by
the Property Trustee.
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Section 5.5. The Securities Certificates.
(a) The Preferred Securities Certificates shall be issued in minimum
denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in
excess thereof. The Securities Certificates shall be executed on behalf of the
Trust by manual signature of at least one Administrative Trustee. Securities
Certificates bearing the 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 Securities Certificates
or did not hold such offices at the date of delivery of such Securities
Certificates.
(b) On the Closing Date, the Administrative Trustees shall cause
Securities Certificates in an aggregate Liquidation Amount as provided in
Section 5.3 and Section 5.4 to be executed on behalf of the Trust and delivered
to or upon the written order of the Depositor, executed by an authorized officer
thereof, without further corporate action by the Depositor, in authorized
denominations.
(c) Upon the election of the Depositor prior their original issuance,
Preferred Securities shall be Book-Entry Preferred Securities issued in the form
of one or more Global Preferred Securities registered in the name of DTC, as
Depositary, or its nominee and deposited with DTC or a custodian for DTC for
credit by DTC to the respective accounts of the Owners thereof (or such other
accounts as they may direct).
Section 5.6. Rights of Holders
The Trust Securities shall have no preemptive or similar rights and when
issued and delivered to Holders against payment of the purchase price therefor
will be fully paid and nonassessable by the Trust. Except as provided in
Section 5.12(b), the Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
Section 5.7. Book-Entry Preferred Securities.
(a) No Global Preferred Security may be exchanged in whole or in part for
Preferred Securities Certificates registered, and no transfer of a Global
Preferred Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Preferred Security or a nominee
thereof unless (i) the Depositary advises the Administrative Trustees and the
Property Trustee in writing that the Depositary is no longer willing or able to
properly discharge its responsibilities with respect to the Global Preferred
Security, and no qualified successor is appointed by the Administrative Trustees
within 90 days of receipt of such notice, (ii) the Depositary ceases to be a
clearing agency registered under the Exchange Act and no qualified successor is
appointed by the Administrative Trustees within 90 days of receipt of notice or
becoming aware of such event, (iii) the Administrative Trustees at their option
advise
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the Property Trustee in writing that the Trust elects to terminate the book-
entry system through the Depositary or (iv) a Note Event of Default has occurred
and is continuing. Upon the occurrence of any event specified in clause (i),
(ii), (iii) or (iv) above, the Administrative Trustees shall notify the
Depositary and instruct the Depositary to notify all Owners of Book-Entry
Preferred Securities, the Delaware Trustee and the Property Trustee of the
occurrence of such event and of the availability of the Definitive Preferred
Securities Certificates to Owners of the Preferred Securities. Upon the issuance
of Definitive Preferred Securities Certificates, the Trustees shall recognize
the Holders of the Definitive Preferred Securities Certificates as Holders.
(b) If any Global Preferred Security is to be exchanged for other
Preferred Securities or canceled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Securities Registrar for exchange
or cancellation as provided in this Article V. If any Global Preferred Security
is to be exchanged for other Preferred Securities Certificates or canceled in
part, then either (i) such Global Preferred Security shall be so surrendered for
exchange or cancellation as provided in this Article V or (ii) the aggregate
Liquidation Amount represented by such Global Preferred Security shall be
reduced by an amount equal to the Liquidation Amount represented by that portion
of the Global Preferred Security to be so exchanged or canceled, by means of an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Property Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender to the
Securities Registrar of the Global Preferred Security or Securities by the
Depositary, 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 Depositary. 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 fully protected
in relying on, such instructions.
(c) Every Preferred Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global
Preferred Security or any portion thereof shall be executed and delivered in the
form of, and shall be, a Global Preferred Security, unless such Preferred
Securities Certificate is registered in the name of a Person other than the
Depositary for such Global Preferred Security or a nominee thereof.
(d) The Depositary or its nominee, as registered owner of a Global
Preferred Security, shall be the Holder of such Global Preferred Security for
all purposes under this Agreement and the Global Preferred Security, and Owners
with respect to a Global Preferred Security shall hold such interests pursuant
to the Applicable Procedures. The Securities Registrar and the Trustees shall be
entitled to deal with the Depositary for all purposes of this Trust Agreement
relating to the Global Preferred Securities (including the payment of the
Liquidation Amount of and Distributions on the Book-Entry Preferred Securities
represented thereby and the giving of instructions or directions by Owners of
Book-Entry Preferred Securities represented thereby and the giving of notices)
as the sole Holder of the Book-Entry Preferred Securities represented thereby
and shall have no obligations to the Owners thereof. None of the Trustees nor
the Securities Registrar shall have any liability in respect of any transfers
effected by the Depositary.
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(e) The rights of the Owners of the Book-Entry Preferred Securities shall
be exercised only through the Depositary and shall be limited to those
established by law, the Applicable Procedures and agreements between such Owners
and the Depositary and/or the Depositary Participants, provided, solely for the
purpose of determining whether the Holders of the requisite amount of Preferred
Securities have voted on any matter provided for in this Trust Agreement, so
long as Definitive Preferred Security Certificates have not been issued pursuant
to Section 5.7(a), the Trustees may conclusively rely on, and shall be fully
protected in relying on, any written instrument (including a proxy) delivered to
the Property Trustee by the Depositary setting forth the Owners' votes or
assigning the right to vote on any matter to any other Persons either in whole
or in part. Unless and until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.7(a), the initial Depositary will make book-entry
transfers among the Depositary Participants and receive and transmit payments on
the Preferred Securities to such Depositary Participants, and none of the
Depositor or the Trustees shall have any responsibility or obligation with
respect thereto.
(f) To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Global Preferred Security, the Trustees shall give all such
notices and communications specified herein to be given to the Depositary, and
shall have no obligations to the Owners.
Section 5.8. Registration of Transfer and Exchange of Preferred
Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept, at the Corporate
Trust Office a register in which, subject to such reasonable regulations as it
may prescribe, it shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates and registration of transfers of
Preferred Securities Certificates as herein provided (the "Securities
Register"). The Person acting as the Property Trustee shall at all times also be
the "Securities Registrar." The provisions of Article VIII shall apply to the
Property Trustee in its role as Securities Registrar.
(b) Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency designated for that purpose, the
Administrative Trustees or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall 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
as may be required by this Trust Agreement dated the date of execution by such
Administrative Trustee or Trustees.
(c) At the option of a Holder, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates in authorized
denominations and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificate to be exchanged at the office or agency
designated for that purpose. Whenever any Preferred Securities Certificates are
so surrendered for exchange, the Administrative Trustees or any one of them
shall execute and deliver to the Property Trustee, and the Property Trustee
shall deliver, the Preferred Securities Certificates that the Holder making the
exchange is entitled to receive.
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(d) Every Preferred Securities Certificate presented or surrendered for
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or such Holder's attorney duly authorized in writing.
(e) No service charge shall be made for any transfer or exchange of
Preferred Securities Certificates, but the Trust 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.
(f) The Securities Registrar shall not be required, (i) to issue, register
the transfer of or exchange any Preferred Security during a period beginning at
the opening of business 15 days before the day of selection for redemption of
such Preferred Securities pursuant to Article IV and ending at the close of
business on the day of mailing of the notice of redemption or (ii) to register
the transfer of or exchange any Preferred Security so selected for redemption in
whole or in part, except, in the case of any such Preferred Security to be
redeemed in part, any portion thereof not to be redeemed.
(g) The Administrative Trustees shall designate an office or offices or
agency or agencies where Preferred Securities Certificates may be surrendered
for transfer or exchange. The Company initially designates the Corporate Trust
Office as its office and agency for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor, the Property Trustee and to
the Holders of any change in the location of any such office or agency.
Section 5.9. Mutilated, Destroyed, Lost or Stolen Securities Certificates.
(a) If any mutilated Securities Certificate shall be surrendered to the
Securities Registrar together with such security or indemnity as may be required
by the Securities Registrar and the Administrative Trustees to save each of them
harmless, the Administrative Trustees, or any one of them, on behalf of the
Trust, shall execute and make available for delivery in exchange therefor a new
Securities Certificate of like class, tenor and denomination.
(b) If the Securities Registrar and the Administrative Trustees shall
receive evidence to their satisfaction of the destruction, loss or theft of any
Securities Certificate and such security or indemnity as may be required by them
to save each of them harmless, then in the absence of notice that such
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
destroyed, lost or stolen Securities Certificate, a new Securities Certificate
of like class, tenor and denomination.
(c) Any duplicate Securities Certificate issued pursuant to this Section
5.9 shall constitute conclusive evidence of an undivided beneficial interest in
the assets of the Trust corresponding to that evidenced by the lost, stolen or
destroyed Securities Certificate, as if originally issued, whether or not the
lost, stolen or destroyed Securities Certificate shall be found at any time.
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(d) If any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Administrative Trustees in their
discretion may, instead of issuing a new Security, pay such Security.
(e) Upon the issuance of any new Securities Certificate under this Section
5.9, 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.
(f) The provisions of this Section 5.9 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement of or payment with respect to mutilated, destroyed, lost or stolen
Securities Certificates.
Section 5.10. Persons Deemed Holders.
The Trustees and the Securities Registrar shall each treat the Person in
whose name any Securities Certificate shall be registered in the Securities
Register as the owner of such Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and none of the
Trustees and the Securities Registrar shall be bound by any notice to the
contrary.
Section 5.11. Cancellation.
All Preferred Securities Certificates surrendered for transfer or exchange
or for payment shall, if surrendered to any Person other than the Property
Trustee, be delivered to the Property Trustee, and any such Preferred Securities
Certificates and Preferred Securities Certificates surrendered directly to the
Property Trustee for any such purpose shall be promptly canceled by it. The
Administrative Trustees may at any time deliver to the Property Trustee for
cancellation any Preferred Securities Certificates previously delivered
hereunder that the Administrative Trustees may have acquired in any manner
whatsoever, and all Preferred Securities Certificates so delivered shall be
promptly canceled by the Property Trustee. No Preferred Securities Certificates
shall be executed and delivered in lieu of or in exchange for any Preferred
Securities Certificates canceled as provided in this Section, except as
expressly permitted by this Trust Agreement. All canceled Preferred Securities
Certificates shall be disposed of by the Property Trustee in accordance with its
customary practices and the Property Trustee shall deliver to the Administrative
Trustees a certificate of such disposition.
Section 5.12. Ownership of Common Securities by Depositor.
(a) On the Closing Date, the Depositor shall acquire, and thereafter shall
retain, beneficial and record ownership of the Common Securities. Neither the
Depositor nor any successor Holder of the Common Securities may transfer less
than all the Common Securities, and the Depositor or any such successor Holder
may transfer the Common Securities only (i) in connection with a consolidation
or merger of the Depositor into another Person, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, [pursuant to] [in a manner consistent with] Section 8.1 of the
Indenture or (ii) to the Depositor or an Affiliate of the Depositor in
compliance with applicable law (including the Securities Act, and applicable
state securities and blue sky laws). To the fullest extent permitted by law, any
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attempted transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor to contain a
legend stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN
COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.12 OF THE TRUST AGREEMENT."
(b) Any Holder of the Common Securities shall be liable for the debts and
obligations of the Trust in the manner and to the extent set forth with respect
to the Depositor and agrees that it shall be subject to all liabilities to which
the Depositor may be subject.
ARTICLE VI.
Meetings; Voting; Acts of Holders
Section 6.1 Notice of Meetings.
Notice of all meetings of the Holders of the Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the Property
Trustee pursuant to Section 10.8 to each Holder of Preferred Securities, at such
Holder's registered address, at least 15 days and not more than 90 days before
the meeting. At any such meeting, any business properly before the meeting may
be so considered whether or not stated in the notice of the meeting. Any
adjourned meeting may be held as adjourned without further notice.
Section 6.2 Meetings of Holders of the Preferred Securities.
(a) No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of the Holders of the Preferred
Securities to vote on any matter upon the written request of the Holders of at
least 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities and the Administrative Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of the Holders of the Preferred
Securities to vote on any matters as to which such Holders are entitled to vote.
(b) The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Preferred Securities.
(c) If a quorum is present at a meeting, an affirmative vote by the
Holders present, in person or by proxy, holding Preferred Securities
representing at least a Majority in Liquidation Amount of the Preferred
Securities held by the Holders present, either in person or by proxy, at such
meeting shall constitute the action of the Holders of the Preferred Securities,
unless this Trust Agreement requires a lesser or greater number of affirmative
votes.
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Section 6.3. Voting Rights.
Holders shall be entitled to one vote for each $1,000 of Liquidation Amount
represented by their Outstanding Trust Securities in respect of any matter as to
which such Holders are entitled to vote.
Section 6.4 Proxies, Etc.
At any meeting of Holders, any Holder 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 Holders
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 Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
Section 6.5. Holder Action by Written Consent.
Any action that may be taken by Holders at a meeting may be taken without a
meeting and without prior notice if Holders holding at least a Majority in
Liquidation Amount of all Preferred Securities entitled to vote in respect of
such action (or such lesser or greater proportion thereof as shall be required
by any other provision of this Trust Agreement) shall consent to the action in
writing. Any action that may be taken by the Holders of all the Common
Securities may be taken if such Holders shall consent to the action in writing.
Section 6.6 Record Date for Voting and Other Purposes.
Except as provided in Section 6.10(a), for the purposes of determining the
Holders who are entitled to notice of and to vote at any meeting or to act by
written consent, or to participate in any distribution on the Trust Securities
in respect of which a record date is not otherwise provided for in this Trust
Agreement, or for the purpose of any other action, the Administrative Trustees
may from time to time fix a date, not more than 90 days prior to the date of any
meeting of Holders 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 Holders of
record for such purposes.
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Section 6.7. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders 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 Holders 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 conclusive in favor of
the Trustees, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's 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 that any Trustee receiving the same
deems sufficient.
(c) The ownership of Trust Securities shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder 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, the
Administrative Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Without limiting the foregoing, a Holder 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.
(f) If any dispute shall arise among the Holders or the Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Holder or Trustee
under this Article, then the determination of such matter by the Property
Trustee shall be conclusive with respect to such matter.
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Section 6.8. Inspection of Records.
Upon reasonable written notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by any
Holder during normal business hours for any purpose reasonably related to such
Holder's interest as a Holder.
Section 6.9. Limitations on Voting Rights.
(a) Except as expressly provided in this Trust Agreement 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 Securities Certificates, be construed so as to constitute the Holders
from time to time as partners or members of an association.
(b) So long as any Notes are held by the Property Trustee on behalf of the
Trust, the Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Note Trustee, or
exercise any trust or power conferred on the Property Trustee with respect to
the Notes, (ii) waive any past default that may be waived under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Notes shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Notes, 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 the Preferred
Securities, provided, that where a consent under the Indenture would require the
consent of each Holder of Notes affected thereby, no such consent shall be given
by the Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities, except by a subsequent vote of the Holders of the Preferred
Securities. Subject to Section 8.6, the Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default received with
respect to the Notes. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes.
(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 Preferred Securities. Notwithstanding any other provision of this
Trust Agreement, no amendment to this Trust Agreement may be made if, as a
result of
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such amendment, it would cause the Trust to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes.
Section 6.10. Waivers of Past Defaults.
(a) For so long as any Preferred Securities remain Outstanding, if, upon a
Note Event of Default, the Note Trustee fails or the holders of not less than
25% in principal amount of the outstanding Notes fail to declare the principal
of all of the Notes to be immediately due and payable, the Holders of at least
25% in Liquidation Amount of the Preferred Securities then Outstanding shall
have the right to make such declaration by a notice in writing to the Property
Trustee, the Depositor, the Issuer, the guarantor of the Notes under the
Indenture, if any, and the Note Trustee. At any time after a declaration of
acceleration with respect to the Notes has been made and before a judgment or
decree for payment of the money due has been obtained by the Note Trustee as
provided in the Indenture, the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities, by written notice to the Property Trustee,
the Depositor, the Issuer, the guarantor of the Notes under the Indenture, if
any, and the Note Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer or any such guarantor has paid or deposited with the
Note Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all of the Notes,
(B) any accrued Additional Interest on all of the Notes,
(C) the principal of and any premium on any Notes that have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Notes, and
(D) all sums paid or advanced by the Note Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Note Trustee, the Property Trustee and their agents
and counsel; and
(iii) all Note Events of Default, other than the non-payment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13 of the Indenture.
Upon receipt by the Property Trustee of written notice requesting such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Preferred Securities, a record date shall be established by the Property Trustee
for determining Holders of Outstanding Preferred Securities entitled to join in
such notice, which record date shall be at the close of business on the day the
Property Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day that is
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90 days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice that has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 6.10(a).
(b) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Note Event of Default specified in Section 5.1(a) or
(b) of the Indenture, any Holder of Preferred Securities shall have the right to
institute a proceeding directly against the Issuer or any guarantor of the Notes
under the Indenture, pursuant to Section 5.8 of the Indenture, for enforcement
of payment to such Holder of any amounts payable in respect of Notes having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such Holder. Except as set forth in Section 6.10(a) and
this Section 6.10(b), the Holders of Preferred Securities shall have no right to
exercise directly any right or remedy available to the holders of, or in respect
of, the Notes.
(c) Except as otherwise provided in Section 6.10(a) and (b), the Holders
of at least a Majority in Liquidation Amount of the Preferred Securities may, on
behalf of the Holders of all the Preferred Securities, waive any past Note Event
of Default, except any Note Event of Default arising from the failure to pay any
principal or interest on the Notes (unless such Note Event of Default has been
cured and a sum sufficient to pay all matured installments of interest and all
principal and premium on all Notes due otherwise than by acceleration has been
deposited with the Note Trustee) or a Note Event of Default in respect of a
covenant or provision that under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Note. Upon any such
waiver, such Note Event of Default shall cease to exist and any Note Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of the Indenture; but no such waiver shall affect any subsequent Note Event of
Default or impair any right consequent thereon.
(d) Except as otherwise provided in Section 6.10(a), (b) or (c), the
Holders of at least a Majority in Liquidation Amount of the Preferred Securities
may, on behalf of the Holders of all the Preferred Securities, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Trust Agreement, but no
such waiver shall extend to any subsequent or other Event of Default or impair
any right consequent thereon.
(e) The Holders of a Majority in Liquidation Amount of the Preferred
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee in
respect of this Trust Agreement or the Notes or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement; provided, that,
subject to Section 8.5, the Property Trustee shall have the right to decline to
follow any such direction if the Property Trustee being advised by counsel
determines that the action so
33
directed may not lawfully be taken, or if the Property Trustee in good faith
shall, by an officer or officers of the Property Trustee, determine that the
proceedings so directed would be illegal or involve it in personal liability or
be unduly prejudicial to the rights of Holders not party to such direction, and
provided, further, that nothing in this Trust Agreement shall impair the right
of the Property Trustee to take any action deemed proper by the Property Trustee
and which is not inconsistent with such direction.
ARTICLE VII
Representations and Warranties
Section 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself, hereby represents and warrants for the benefit of the
Depositor, the Issuer and the Holders that:
(a) the Property Trustee is a banking corporation, duly organized,
validly existing and in good standing under the laws of the State of New
York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) the Delaware Trustee is a banking corporation, duly organized,
validly existing and in good standing under the laws of the State of
Delaware;
(d) the Delaware Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this
Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes
the valid and legally binding agreement of each of the Property Trustee and
the Delaware Trustee enforceable against each of them 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; and
(f) the execution, delivery and performance of this Trust Agreement
have been duly authorized by all necessary corporate or other action on the
part of the Property Trustee and the Delaware Trustee and do not require
any approval of stockholders of the Property Trustee and the Delaware
Trustee and such execution, delivery and performance
34
will not (i) violate the Charter or By-laws of the Property Trustee or the
Delaware Trustee or (ii) violate any applicable law, governmental rule or
regulation of the State of New York or the State of Delaware, as the case
may be, governing the banking or trust powers of the Property Trustee or
the Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Delaware Trustee.
Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the Depositor is duly organized, validly existing and in good
standing under the laws of its State of incorporation;
(b) the Depositor 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 Depositor and constitutes the valid and legally binding
agreement of the Depositor enforceable against the Depositor 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; and
(d) the Securities Certificates issued at the Closing Date on behalf
of the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Administrative Trustees pursuant to
the terms and provisions of, and in accordance with the requirements of,
this Trust Agreement and the Holders will be, as of each such date,
entitled to the benefits of this Trust Agreement.
ARTICLE VII
The Trustees
Section 8.1. Number of Trustees.
The number of Trustees shall be five, provided, that the Property Trustee
and the Delaware Trustee may be the same Person, in which case the number of
Trustees shall be four. The number of Trustees may be increased or decreased by
Act of the Holder of the Common Securities. The death, resignation, retirement,
removal, bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul, dissolve or terminate the Trust.
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Section 8.2. Property Trustee Required.
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 a national
or state chartered bank and eligible pursuant to the Trust Indenture Act to act
as such, and that has at the time of such appointment a combined capital and
surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section 8.2
and to the extent permitted by the Trust Indenture Act, 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 shall cease to be eligible in accordance with the
provisions of this Section 8.2, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 8.3. Delaware Trustee Required.
(a) If required by the Delaware Business Trust Act, 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 and that shall act through one or more
persons authorized to bind such entity. If at any time the Delaware Trustee
shall cease to be eligible in accordance with the provisions of this Section
8.3, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
(b) 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 and for taking such actions as are required to be taken by a Delaware
trustee under the Delaware Business Trust Act.
(c) It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust
(i) any agreements or instruments executed and delivered by Chase Manhattan Bank
Delaware are executed and delivered not in its individual capacity but solely as
Delaware Trustee under this Trust Agreement in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as representations, warranties, covenants, undertakings and
agreements by Chase Manhattan Bank Delaware in its individual capacity but is
made and intended for the purpose of binding only the Trust, and (iii) under no
circumstances shall Chase Manhattan Bank Delaware in its individual capacity be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Trust Agreement,
except if such breach or failure is due to any gross negligence or willful
misconduct of the Delaware Trustee.
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Section 8.4. Appointment of Administrative Trustees.
(a) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity. Each of the individuals identified as an "Administrative Trustee" in the
preamble of this Trust Agreement is hereby appointed as an Administrative
Trustee and hereby accepts his or her appointment as such.
(b) Except where a requirement for action by a specific number of
Administrative Trustees is expressly set forth in this Trust Agreement, any act
required or permitted to be taken by, and any power of the Administrative
Trustees may be exercised by, or with the consent of, any one such
Administrative Trustee. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.12, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.5. Duties and Responsibilities of the Trustees.
(a) The rights, immunities, 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 any of the Trustees to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its or their rights or
powers, if it or 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 herein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to the
provisions of this Section 8.5.
(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 Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.5(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 provisions of this Trust Agreement shall be construed to relieve
the Property Trustee from liability with respect to matters that are within the
authority of the Property Trustee
37
under this Trust Agreement for its own negligent action, negligent failure to
act or willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error or
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 at least a Majority in Liquidation Amount
of the Preferred 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 Notes and the Payment Account
shall be to deal with such Property in a similar manner as the Property
Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property Trustee
under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.1 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of any other Trustee or the
Depositor.
Section 8.6. Notices of Defaults and Extensions.
(a) Within 90 days after the occurrence of a default actually known to the
Property Trustee, the Property Trustee shall transmit notice of such default to
the Holders, the Administrative Trustees and the Depositor, unless such default
shall have been cured or waived; provided, that, except in the case of a default
in the payment of the principal of or any premium or interest (including any
Additional Interest) on any Trust Security, the Property Trustee shall be fully
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Trust Securities. For
the purpose of this Section, the term "default" means any event that is, or
after notice or lapse of time or both would become, an Event of Default with
respect to the Trust Securities. For purposes of this section, the term
"Responsible Officer," when used with respect to the Property Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive
38
committee of the board off directors, the chairman of the trust committee, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any senior trust officer, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
(b) Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Notes
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Holders and the Administrative Trustees, unless such exercise shall have been
revoked.
(c) The Property Trustee shall not be deemed to have knowledge of any
Event of Default unless the Property Trustee shall have received written notice
thereof from the Depositor, any Administrative Trustee or any Holder unless an
officer of the Property Trustee charged with the administration of this Trust
Agreement shall have obtained actual knowledge of such Event of Default.
Section 8.7. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.5:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action, (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is unsure
of the application of any provision of this Trust Agreement, then, except
as to any matter as to which the Holders of the Preferred Securities are
entitled to vote under the terms of this Trust Agreement, the Property
Trustee shall deliver a notice to the Depositor requesting the Depositor's
written instruction as to the course of action to be taken and the Property
Trustee shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain from
taking, by the Depositor; provided, 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), the Property Trustee may, but shall be under no
duty to, take such action, or refrain from taking such action, as the
Property Trustee
39
shall deem advisable and in the best interests of the Holders, in which
event the Property Trustee shall have no liability except for its own
negligence, bad faith or wilful misconduct;
(c) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate
unless otherwise expressly provided herein;
(d) any direction or act of an Administrative Trustee contemplated by
this Trust Agreement shall be sufficiently evidenced by a certificate
executed by such Administrative Trustee and setting forth such direction or
act;
(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
re-recording, re-filing or re-registration thereof;
(f) the Property Trustee may consult with counsel (which counsel may
be counsel to the Property Trustee, the Depositor, the Issuer or any
Affiliate of the Depositor or the Issuer, and may include any of its
employees) 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; 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 Holders pursuant to this Trust Agreement, unless
such Holders shall have offered to the Property Trustee reasonable security
or indemnity against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in compliance with
such request or direction, including reasonable advances as may be
requested by the Property Trustee;
(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 Holders, but
the Property Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Property Trustee shall
determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Depositor, personally or by
agent or attorney;
(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, attorneys, custodians or nominees and the Property Trustee
shall not be responsible for any
40
negligence or misconduct on the part of such agent, attorney, custodian or
nominee appointed with due care 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 (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 this Trust Agreement 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;
(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;
(l) without prejudice to any other rights available to the Property
Trustee under applicable law, when the Property Trustee incurs expenses or
renders services in connection with a Bankruptcy Event, such expenses
(including legal fees and expenses of its agents and counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditors rights
generally; and
(m) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence be herein specifically
prescribed) may, in the absence or bad faith on its part, request and rely
on an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any 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 such Person 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.
Section 8.8. Delegation of Power.
Any Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 its, his or her power
for the purpose of executing any documents contemplated in Section 2.5. The
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 Trustees or
otherwise as the Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of this Trust
Agreement.
41
Section 8.9. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.11 and 8.16, and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.10. Compensation; Reimbursement; Indemnity.
The Depositor agrees:
(a) to pay to the Trustees from time to time such reasonable
compensation for all services rendered by them hereunder as may be agreed
by the Depositor and the Trustees from time to time (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(b) to reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of their agents
and counsel), except any such expense, disbursement or advance as may be
attributable to their negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee or agent of any Trustee
and (iv) any employee or agent of the Trust (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax
(including the reasonable compensation, expenses and disbursements of its
counsel and agents) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
the trust or the performance of the Trustees' duties hereunder, including
the reasonable 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 on any Trust Property as a result of any
amount due pursuant to this Section 8.10.
The provisions of this Section 8.10 shall survive the termination of this
Trust Agreement and the earlier removal or resignation of any Trustee.
Section 8.11. Conflicting Interests.
(a) 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.
42
(b) The Guarantee Agreement and the Indenture shall be deemed to be
specifically described in this Trust Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture Act.
Section 8.12. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any 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 8.13.
(b) A Trustee may resign at any time by giving written notice thereof to
the Depositor and, in the case of the Property Trustee and the Delaware Trustee,
to the Holders. If the instrument of acceptance by the successor Trustee
required by Section 8.13 shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition, at the expense of the Trust, any court in the State of
Delaware for the appointment of a successor Trustee.
(c) Unless an Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed at any
time by Act of the Holder of Common Securities. If an 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 at least a
Majority in Liquidation Amount of the Preferred Securities, delivered to the
removed Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed only by Act of the Holder of the Common
Securities at any time.
(d) If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
reason, at a time when no Event of Default shall have occurred and be
continuing, the Holder of the Common Securities, by Act of the Holder of the
Common Securities shall promptly appoint a successor Trustee or Trustees, and
such successor Trustee and the retiring Trustee shall comply with the applicable
requirements of Section 8.13. 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 an
Event of Default shall have occurred and be continuing, the Holders of the
Preferred Securities, by Act of the Holders of a Majority in Liquidation Amount
of the Preferred Securities shall promptly appoint a successor Trustee or
Trustees, and such successor Trustee and the retiring Trustee shall comply with
the applicable requirements of Section 8.13. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, at a
time when an Event of Default shall have occurred and be continuing, the Holder
of the Common Securities by Act of the Holder of Common Securities shall
promptly appoint a successor Administrative Trustee and such successor
Administrative Trustee and the retiring Administrative Trustee shall comply with
the applicable requirements of Section 8.13. If no successor Trustee shall have
been so appointed by the Holder of the Common Securities or Holders of the
Preferred Securities and accepted appointment in the manner required by Section
8.13, any Holder who has been a Holder of Preferred 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 Trustee.
43
(e) The Depositor shall give notice of each resignation and each removal
of the Property Trustee or the Delaware Trustee and each appointment of a
successor Property Trustee or Delaware Trustee to all Holders in the manner
provided in Section 10.8. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
(f) Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Holder of Common
Securities, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act of the
remaining Administrative Trustees if there are at least two of them or (ii)
otherwise by the Depositor (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees or Delaware
Trustee, as the case may be, set forth in Sections 8.3 and 8.4).
Section 8.13. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, each
successor Trustee with respect to the Trust Securities shall execute and deliver
to the Depositor and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and each 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 request of the Trust or any successor
Trustee such retiring Trustee shall, upon payment of its charges, duly assign,
transfer and deliver to such successor Trustee all Trust Property, all proceeds
thereof and money held by such retiring Trustee hereunder with respect to the
Trust Securities and the Trust.
(b) Upon request of any such successor Trustee, the Trust (or the retiring
Trustee if requested by the Depositor) shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in the preceding paragraph.
(c) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 8.14. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such Trustee
hereunder, provided, that such Person shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
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Section 8.15. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities Certificates shall be
taken as the statements of the Trust and the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations at to the title to, or value or condition of, the property of
the Trust or any part thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Notes, any guarantee thereof, if applicable, or the Trust
Securities. The Trustees shall not be accountable for the use or application by
the Issuer of the proceeds of the Notes.
Section 8.16. Preferential Collection of Claims Against Depositor or
Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Preferred Securities), the
Property Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or the Trust (or any
such other obligor).
Section 8.17. Property Trustee May File Proofs of Claim.
(a) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Trust or any other obligor upon the Trust Securities
or the property of the Trust or of such other obligor or their creditors, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Trust for the payment of any
past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
(b) Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization,
45
arrangement adjustment or compensation affecting the Trust Securities or the
rights of any Holder thereof or to authorize the Property Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 8.18. Reports by the Property Trustee.
(a) If required by Section 313(a) of the Trust Indenture Act, the Property
Trustee shall, within 60 days after each September 15 following the date of this
Trust Agreement, transmit to all Holders a brief report, dated as of the
immediately preceding September 15, concerning the Property Trustee and its
actions under this Trust Agreement pursuant to Section 313(a) of the Trust
Indenture Act.
(b) The Property Trustee shall transmit to Holders such other 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 securities exchange or
system upon which the Trust Securities are listed or traded, if any, with the
Commission and with the Depositor. The Depositor shall notify the Property
Trustee when any Trust Securities are listed or traded on any securities
exchange or system.
Section 8.19. Reports to the Property Trustee.
Each of the Depositor and the Administrative Trustees shall provide to the
Property Trustee such documents, reports and information as required by Section
314 of the Trust Indenture Act (if any). The Depositor and the Administrative
Trustees shall deliver to the Property Trustee, within 120 days after the end of
each fiscal year of the Trust ending after the date of this Trust Agreement, an
Officers' Certificate covering the preceding fiscal year, stating whether or not
to the knowledge of the signers thereof the Depositor, the Issuer and the Trust
are in default in the performance or observance of any of the terms, provisions
and conditions of this Trust Agreement (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Depositor, the Issuer or
the Trust shall be in default, specifying all such defaults and the nature and
status thereof of which they have knowledge.
Section 8.20. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees 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.
46
Section 8.21. Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Administrative
Trustees, except in such instances as set forth in the second following
sentence, 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 8.21. Any co-trustee
or separate trustee appointed pursuant to this Section 8.21 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. If the Depositor does not join in such appointment within 15 days after
the receipt by it of a request to do so, or in case an Event of Default under
the Indenture shall have occurred and be continuing, the Property Trustee alone
shall have the power to make such appointment.
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, provided, however, that, if an Event of Default shall have
occurred and be continuing, the Property Trustee may execute any such instrument
on behalf of the Depositor as its agent and attorney-in-fact therefor.
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 by one or more Administrative
Trustees, and the Trust Securities shall be delivered by the Property Trustee,
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 Property Trustee specified hereunder shall be
exercised solely by the Property Trustee 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
47
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
8.21, and, in case a Note Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigning or
removed may be appointed in the manner provided in this Section 8.21.
(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.
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
___________, (the "Expiration Date"), and the Trust Property shall be liquidated
in accordance with Section 9.4.
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event," upon the occurrence of which the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the Holder
of the Common Securities, unless the Depositor shall transfer the Common
Securities as provided by Section 5.12, in which case this provision shall
refer instead to any such successor Holder of the Common Securities, or the
Issuer, unless the Issuer shall have assigned its obligations in accordance
with Article VIII of the Indenture in which case this provision shall refer
instead to any such successor Issuer under the Indenture.
(b) the written direction to the Property Trustee from the Holder of
the Common Securities at any time to dissolve the Trust and, after
satisfaction of any
48
liabilities of the Trust as required by applicable law, to distribute the
Notes to Holders in exchange for the Preferred Securities (which direction
is optional and wholly within the discretion of the Holder of the Common
Securities);
(c) the redemption of all of the Preferred Securities in connection
with the payment at maturity or redemption of all the Notes; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Holders of all amounts required to be
distributed hereunder upon the liquidation of the Trust pursuant to Section 9.4,
or upon the redemption of all of the Trust Securities pursuant to Section 4.2;
(b) the satisfaction 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
Holders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in Section 9.2(a), (b) or (d)
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 Holder a Like Amount of Notes, subject to
Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by
not less 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 such 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 Securities
Certificates not surrendered for exchange will be deemed to represent a
Like Amount of Notes; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Securities Certificates for Notes, or if Section
9.4(d) applies, receive a Liquidation Distribution, as the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Notes to Holders, the Property
Trustee, either itself acting as exchange agent or through the appointment of a
separate exchange agent, shall establish a record date for such distribution
(which shall be not more than 45 days prior to the Liquidation Date) and,
establish such procedures as it shall deem appropriate to effect the
distribution of Notes in exchange for the Outstanding Securities Certificates.
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(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Notes will be issued to Holders of
Securities Certificates, upon surrender of such Certificates to the exchange
agent for exchange, (iii) the Depositor shall use its best efforts to have the
Notes listed on the New York Stock Exchange or on such other exchange,
interdealer quotation system or self-regulatory organization on which the
Preferred Securities are then listed, if any, (iv) Securities Certificates not
so surrendered for exchange will be deemed to represent a Like Amount of Notes
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such 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 Securities Certificates with
respect to such Notes) and (v) all rights of Holders holding Trust Securities
will cease, except the right of such Holders to receive Notes upon surrender of
Securities Certificates.
(d) Notwithstanding the other provisions of this Section 9.4, if
distribution of the Notes in the manner provided herein is determined by the
Property Trustee not to be permitted or practical, the Trust Property shall be
liquidated, and the Trust shall be wound-up by the Property Trustee in such
manner as the Property Trustee determines. In such event, Holders will be
entitled to receive out of the assets of the Trust available for distribution to
Holders, after satisfaction of liabilities to creditors of the Trust as provided
by applicable law, an amount equal to the Liquidation Amount per Trust Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such winding up 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 winding-up pro rata
(determined as aforesaid) with Holders of all Trust Securities, except that, if
an Event of Default has occurred and is continuing, the Preferred Securities
shall have a priority over the Common Securities as provided in Section 4.3.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
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 Person except pursuant to this Article IX.
At the request of the Holders of the Common Securities, without the consent of
the Holders, 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
(a) such successor entity either (i) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (ii)
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 have the same priority as
the Preferred Securities with respect to distributions and payments upon
liquidation, redemption and otherwise,
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(b) a trustee of such successor entity possessing substantially the
same powers and duties as the Property Trustee is appointed to hold the
Notes,
(c) 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 that then assigns a rating to the Preferred
Securities,
(d) the Preferred Securities are listed, or any Successor Securities
will be listed upon notice of issuance, on any national securities exchange
or interdealer quotation system on which the Preferred Securities are then
listed, if any,
(e) 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,
(f) such successor entity has a purpose substantially identical to
that of the Trust,
(g) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (i) 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
(ii) 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
Investment Company Act and neither the Trust nor the successor entity will
be taxable as a corporation or classified as other than a grantor trust for
federal income tax purposes, and
(h) the Depositor or its permitted transferee 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 Agreement [and, if Mutual Group is the Issuer,
MRM guarantees the obligations of Mutual Group at least to the extent
provided by the Guarantee Agreement].
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of all of the Preferred Securities, consolidate, amalgamate, merge with
or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other Person or permit any other
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 taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes or cause the Notes to be treated as other than indebtedness of the
Corporation for United States federal income tax purposes.
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ARTICLE X.
Miscellaneous Provisions
Section 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death, bankruptcy, termination,
dissolution or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor annul, dissolve or terminate the Trust nor entitle the legal
representatives or heirs of such Person or any Holder for such Person, to claim
an accounting, take any action or bring any proceeding in any court for a
partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
Section 10.2. Agreed Tax Treatment of Trust and Trust Securities.
The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein the Holder of, and any Person that
acquires a beneficial interest in, such Trust Security intend and agree to treat
the Trust as a grantor trust for United States federal, state and local tax
purposes, and to treat the Trust Securities (including all payments and proceeds
with respect to such Trust Securities) as undivided beneficial ownership
interests in the Trust Property (and payments and proceeds therefrom,
respectively) for United States federal, state and local tax purposes. The
provisions of this Trust Agreement shall be interpreted to further this
intention and agreement of the parties.
Section 10.3. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Administrative Trustees, the Holder of all the Common Securities
and the Issuer without the consent of any Holder of the Preferred Securities,
(i) to cure any ambiguity, correct or supplement any provision herein that may
be defective or inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of this
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will not be taxable as a corporation or will be classified as other than a
grantor trust for United States federal income tax purposes at all times that
any Trust Securities are Outstanding or to ensure that the Notes are treated as
indebtedness of the Depositor for United States federal income tax purposes, or
to ensure that the Trust will not be required to register as an "investment
company" under the Investment Company Act or (iii) to add to the covenants,
restrictions or obligations of the Depositor or the Issuer; provided, that in
the case of clauses (i), (ii) or (iii), such action shall not adversely affect
in any material respect the interests of any Holder.
(b) Except as provided in Section 10.3(c), any provision of this Trust
Agreement may be amended by the Property Trustee, the Administrative Trustees,
the Holder of all of the Common Securities and the Issuer and with (i) the
consent of Holders of at least a Majority in
52
Liquidation Amount of the Preferred Securities 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
cause the Trust to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes or affect the
treatment of the Notes as indebtedness of the Corporation for United States
federal income tax purposes or affect the Trust's exemption from status as an
"investment company" under the Investment Company Act.
(c) Notwithstanding any other provision of this Trust Agreement, without
the consent of each Holder, this Trust Agreement may not be amended to (i)
change the amount or timing of any Distribution on the Trust Securities or
otherwise adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date, (ii) restrict or impair
the right of a Holder to institute suit for the enforcement of any such payment
on or after such date, (iii) reduce the percentage of aggregate Liquidation
Amount of Outstanding Preferred Securities, the consent of whose Holders is
required for any such amendment, or the consent of whose Holders is required for
any waiver of compliance with any provision of this Trust Agreement or of
defaults hereunder and their consequences provided for in this Trust Agreement
or (iv) modify this Section 10.3(c) or Section 6.10(e).
(d) Notwithstanding any other provision of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
that would cause the Trust to be taxable as a corporation or to be classified as
other than a grantor trust for United States federal income tax purposes or that
would cause the Notes to fail or cease to be treated as indebtedness of the
Depositor for United States federal income tax purposes or that would cause the
Trust to fail or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act.
(e) If any amendment to this Trust Agreement is made, the Administrative
Trustees or the Property Trustee shall promptly provide to the Delaware Trustee
a copy of such amendment.
(f) No Trustee shall be required to enter into any amendment to this Trust
Agreement that affects its own rights, duties or immunities under this Trust
Agreement. The Trustees shall be entitled to receive an Opinion of Counsel and
an Officers' Certificate stating that any amendment to this Trust Agreement is
in compliance with this Trust Agreement and all conditions precedent herein
provided for relating to such action have been met.
(g) No amendment to this Trust Agreement which affects the Delaware
Trustee's own rights, duties or immunities under this Trust Agreement shall be
effective without the Delaware Trustee's prior written consent thereto.
Section 10.4. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day with the same force
and effect as though made on the date
53
fixed for such payment, and no Distributions shall accumulate on such unpaid
amount for the period after such date.
Section 10.5. Separability.
If any provision in this Trust Agreement or in the Securities Certificates
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 10.6. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS,
THE TRUST, THE DEPOSITOR, THE ISSUER AND THE TRUSTEES WITH RESPECT TO THIS TRUST
AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS
OF LAWS PROVISIONS ; PROVIDED, HOWEVER, THAT THE IMMUNITIES AND STANDARD OF CARE
OF THE PROPERTY TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND
DUTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. THE PROVISIONS OF SECTION 3540 OF TITLE
12 OF THE DELAWARE CODE SHALL NOT APPLY TO THIS TRUST.
Section 10.7. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Issuer, the Trust and any Trustee,
including any successor by operation of law. Except in connection with a
transaction involving the Issuer that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Issuer's obligations hereunder, the Issuer shall not assign its obligations
hereunder.
Section 10.8. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.9. Reports, Notices and Demands.
(a) Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, addressed, (a)
in the case of a Holder of Preferred Securities, to such Holder as such Holder's
name and address may appear on the Securities Register; and (b) in the case of
the Holder of all the Common Securities or the Depositor or the Issuer, to
Mutual Group, Ltd., One Logan Square, Suite 1500, Philadelphia, Pennsylvania
19103, Attention: General Counsel,
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or to such other address as may be specified in a written notice by the Holder
of all the Common Securities or the Depositor or the Issuer, as the case may be,
to the Property Trustee. Such notice, demand or other communication to or upon a
Holder shall be deemed to have been sufficiently given or made, for all
purposes, upon mailing. Such notice, demand or other communication to or upon
the Depositor or the Issuer shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Depositor or the Issuer.
(b) Any notice, demand or other communication that by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Property Trustee, the Delaware Trustee, the Administrative Trustees or the
Trust shall be given in writing by deposit thereof, first-class postage prepaid,
in the U.S. mail, personal delivery or facsimile transmission, addressed to such
Person as follows: (a) with respect to the Property Trustee to The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York 10001, Attention:
Capital Markets Fiduciary Services, Facsimile no.: ____________; (b) with
respect to the Delaware Trustee, to Chase Manhattan Bank Delaware, 1201 Market
Street, Wilmington, Delaware 19801, Attention: Capital Markets Fiduciary
Services; (c) with respect to the Administrative Trustees, to them at the
address above for notices to the Depositor, marked "Attention: Administrative
Trustees of MRM Capital Trust [ ]," and (d) with respect to the Trust, to its
principal office specified in Section 2.2, with a copy to the Property Trustee.
Such notice, demand or other communication to or upon the Trust, the Property
Trustee; the Delaware Trustee or the Administrative Trustees shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust, the Property Trustee; the Delaware Trustee or the Administrative
Trustees.
Section 10.10. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the Holders
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 Law or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. If
the Depositor takes action in violation of this Section 10.9, the Property
Trustee agrees, for the benefit of Holders, 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 estopped and precluded
therefrom and such other defenses, if any, as counsel for the Property Trustee
or the Trust may assert.
Section 10.11. 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 of the Trust Indenture
Act.
(b) The Property Trustee shall be the only Trustee that is a trustee for
the purposes of the Trust Indenture Act.
55
(c) If any provision hereof limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed duties 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 provision shall be
deemed to apply to this Trust Agreement as so modified or excluded, as the case
may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
[Section 10.12. Submission to Jurisdiction.
MRM agrees that any judicial proceedings instituted in relation to any
matter arising under this Agreement may be brought in any United States Federal
or New York State court sitting in the Borough of Manhattan, The City of New
York, New York to the extent that such court has subject matter jurisdiction
over the controversy, and, by execution and delivery of this Agreement, MRM
hereby irrevocably accepts, generally and unconditionally, the jurisdiction of
the aforesaid courts, acknowledges their competence and irrevocably agrees to be
bound by any judgment rendered in such proceeding. MRM also irrevocably and
unconditionally waives for the benefit of the Trustees and the Holders any
immunity from jurisdiction and any immunity from legal process (whether through
services of notice, attachment prior to judgment, attachment in the aid of
execution, execution or otherwise) in respect of this Agreement. MRM hereby
irrevocably designates and appoints for the benefit of the Trustees and the
Holders for the term of this Agreement, CT Corporation, 111 8/th/ Avenue, New
York, New York 10011, as its agent to receive on its behalf service of all
process (with a copy of all such service of process to be delivered to Mutual
Risk Management Ltd., 44 Church Street, Hamilton HM 12 Bermuda, Attention:
General Counsel), brought against it with respect to any such proceeding in any
such court in The City of New York, such service being hereby acknowledged by
MRM to be effective and binding service on it in every respect whether or not
MRM shall then be doing or shall have at any time done business in New York.
Such appointment shall be irrevocable so long as the obligations of MRM
hereunder remain outstanding until the appointment of a successor by MRM and
such successor's acceptance of such appointment. Upon such acceptance, MRM shall
notify the Trustees of the name and address of such successor. MRM further
agrees for the benefit of the Trustees and the Holders of the Trust Securities
to take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such designation
and appointment of said CT Corporation full force and effect so long as the
obligations of MRM hereunder shall be outstanding. The Trustees shall not be
obligated and shall have no responsibility with respect to any failure by MRM to
take any such action. Nothing herein shall affect the right of any Trustee or
any Holder to institute proceedings against MRM in the courts of any other
jurisdiction or jurisdictions.]
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement as of the day and year first above written.
MUTUAL GROUP, LTD.
56
as Depositor
By:________________________
Name:
Title:
[ ]
as Issuer
By:________________________
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:________________________
Name:
Title:
Administrative Trustees:
___________________________
___________________________
___________________________
57
Exhibit A
CERTIFICATE OF TRUST
OF
MRM CAPITAL TRUST [ ]
This Certificate of Trust of MRM Capital Trust [ ] (the "Trust"),
dated _______________________ ______, 2000, is being duly executed and filed on
behalf of the Trust by the undersigned, as trustees, to form a business trust
under the Delaware Business Trust Act (12 Del. C. (S)3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate
----
of Trust is MRM Capital Trust [ ].
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust with its principal place of business in the State of Delaware are
Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have duly executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act.
THE CHASE MANHATTAN BANK, not
in its individual capacity but solely
as trustee
By:___________________________
Name:
Title:
CHASE MANHATTAN BANK DELAWARE, not
in its individual capacity but solely
as trustee
By:___________________________
Name:
Title:
Exhibit B
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.12 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-
Certificate Evidencing Common Securities
of
MRM Capital Trust [ ]
___% Common Securities
(liquidation amount $1,000 per Common Security)
MRM Capital Trust [ ], a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Mutual Group,
Ltd., a Delaware corporation (the "Holder") is the registered owner of
common securities of the Trust representing undivided common beneficial
interests in the assets of the Trust and designated the ___% Common Securities
(liquidation amount $1,000 per Common Security) (the "Common Securities").
Except in accordance with Section 5.12 of the Trust Agreement (as defined below)
the Common Securities are not transferable and any attempted transfer hereof
other than in accordance therewith 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 ______________ ____, 2000 as the same may be amended from
time to time (the "Trust Agreement"), among Mutual Group, Ltd., as Depositor,
[Mutual Group, Ltd. or Mutual Risk Management Ltd.], as Issuer, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee, the Administrative Trustees named therein and the Holders, from time to
time, of Trust Securities. The Trust will furnish a copy of the Trust Agreement
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
This Common Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
B-1
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate this __ day of ___________________, 2000.
MRM Capital Trust [ ]
By:______________________
Name:
Administrative Trustee
B-2
Exhibit C
[FORM OF PREFERRED SECURITIES CERTIFICATE]
[If the Preferred Securities Certificate is to be Evidenced By a Global
Preferred Security, insert--This Preferred Securities Certificate is a Global
Preferred Security within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Preferred Securities Certificate is exchangeable for Preferred
Securities Certificates registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in the
Trust Agreement and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to MRM Capital Trust [ ] or its agent for registration of transfer, exchange
or payment, and any Preferred Security Certificate issued is registered in the
name of Cede & Co. or 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 A PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
C-1
Certificate Number Number of Preferred Securities
CUSIP NO.
_______________
Certificate Evidencing Preferred Securities
of
MRM Capital Trust [ ]
____% Preferred Securities
(liquidation amount $1,000 per Preferred Security)
MRM Capital Trust [ ], a statutory business trust created 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 MRM Capital Trust [ ] ____% Preferred Securities,
(liquidation amount $1,000 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 5.8 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 ____________ __, 2000, as the same may be amended from time to time (the
"Trust Agreement"), among Mutual Group, Ltd., as Depositor, [Mutual Group, Ltd.
or Mutual Risk Management Ltd.], as Issuer, The Chase Manhattan Bank, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, the
Administrative Trustees named therein and the Holders, from time to time, of
Trust Securities. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by the Issuer and The Chase Manhattan Bank, as Guarantee
Trustee, dated as of ____________ __, 2000, as the same may be amended from time
to time (the "Guarantee Agreement"), to the extent provided therein [and if
Mutual Group, Ltd. is the Issuer, a guarantee by Mutual Risk Management Ltd. of
the obligations under the Guarantee Agreement]. The Trust will furnish a copy of
the Trust Agreement and the Guarantee Agreement to the Holder without charge
upon written request to the Property Trustee 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.
C-2
This Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Trust Agreement,
including the Exhibits thereto.
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate this __ day of ____________, _____.
MRM Capital Trust [ ]
By:_______________________
Name:
Administrative Trustee
C-3
ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Preferred
Security to:
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints______________________________________________________
______________________________________________________________________________
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature: ___________________________________________________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
C-4