EXHIBIT 4.4
AMENDED AND RESTATED
TRUST AGREEMENT
among
UNITED COMMUNITY BANKS, INC.,
as Depositor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
and
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
DATED AS OF JULY 20, 1998
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UNITED COMMUNITY CAPITAL TRUST
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UNITED COMMUNITY CAPITAL TRUST
Certain Sections of this Trust Agreement relating, to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Trust Agreement
Section Section
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Section 310(a)(1) .......................... 8.7
(a)(2)............................... 8.7
(a)(3)............................... 8.9
(a)(4)............................... 2.7(a)(ii)
(b).................................. 8.8, 10.10(b)
Section 311(a) ............................. 8.13, 10.10(b)
(b).................................. 8.13, 10.10(b)
Section 312(a) ............................. 10.10(b)
(b).................................. 10.10(b), (f)
(c).................................. 5.7
Section 313(a) ............................. 8.15(a)
(a)(4)............................... 10.10(c)
(b).................................. 8.15(c), 10.10(c)
(c).................................. 10.8, 10.10(c)
(d).................................. 10.10(c)
Section 314(a) ............................. 8.16, 10.10(d)
(b).................................. Not Applicable
(c)(1)............................... 8.17, 10.10(d), (e)
(c)(2)............................... 8.17, 10.10(d), (e)
(c)(3)............................... 8.17, 10.10(d), (e)
(e).................................. 8.17, 10.10(e)
Section 315(a) ............................. 8.1(d)
(b).................................. 8.2
(c).................................. 8.1(c)
(d).................................. 8.1(d)
(e).................................. Not Applicable
Section 316(a) ............................. Not Applicable
(a)(1)(A)............................ Not Applicable
(a)(1)(B)............................ Not Applicable
(a)(2)............................... Not Applicable
(b).................................. 5.13
(c).................................. 6.7
Section 317(a)(1) .......................... Not Applicable
(a)(2)............................... 8.14
(b).................................. 5.10
Section 318(a) ............................. 10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
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TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINED TERMS......................................................2
SECTION 1.1. DEFINITIONS..............................................2
ARTICLE II CONTINUATION OF THE ISSUER TRUST.................................16
SECTION 2.1. NAME....................................................16
SECTION 2.2. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS...............................................16
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY;
ORGANIZATIONAL EXPENSES................................16
SECTION 2.4. ISSUANCE OF THE CAPITAL SECURITIES......................16
SECTION 2.5. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF JUNIOR SUBORDINATED DEBENTURES.............17
SECTION 2.6. DECLARATION OF TRUST....................................17
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS........17
SECTION 2.8. ASSETS OF TRUST.........................................21
SECTION 2.9. TITLE TO TRUST PROPERTY.................................21
ARTICLE III PAYMENT ACCOUNT.................................................22
SECTION 3.1. PAYMENT ACCOUNT.........................................22
ARTICLE IV DISTRIBUTIONS; REDEMPTION........................................22
SECTION 4.1. DISTRIBUTIONS...........................................22
SECTION 4.2. REDEMPTION..............................................23
SECTION 4.4. PAYMENT PROCEDURES......................................26
SECTION 4.5. TAX RETURNS AND REPORTS.................................27
SECTION 4.6. PAYMENT OF TAXES, DUTIES, ETC. OF THE ISSUER TRUST......27
SECTION 4.7. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT
ACTIONS................................................27
SECTION 4.8. LIABILITY OF THE HOLDER OF COMMON SECURITIES............28
ARTICLE V TRUST SECURITIES CERTIFICATES.....................................28
SECTION 5.1. INITIAL OWNERSHIP.......................................28
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES.......................28
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES
CERTIFICATES...........................................29
SECTION 5.4. GLOBAL CAPITAL SECURITY.................................29
SECTION 5.5. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; CAPITAL
SECURITIES CERTIFICATES; SECURITIES ACT LEGENDS........30
SECTION 5.6. MUTILATED, DESTROYED, LOST OR STOLEN TRUST
SECURITIES CERTIFICATES................................35
SECTION 5.7. PERSONS DEEMED HOLDERS..................................36
SECTION 5.8. ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES..........36
SECTION 5.9. MAINTENANCE OF OFFICE OR AGENCY.........................37
SECTION 5.10. APPOINTMENT OF PAYING AGENT............................37
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SECTION 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR............37
SECTION 5.12. NOTICES TO CLEARING AGENCY.............................38
SECTION 5.13. RIGHTS OF HOLDERS......................................38
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING................................40
SECTION 6.1. LIMITATIONS ON HOLDER'S VOTING RIGHTS...................40
SECTION 6.2. NOTICE OF MEETINGS......................................41
SECTION 6.3. MEETINGS OF HOLDERS.....................................42
SECTION 6.4. VOTING RIGHTS...........................................42
SECTION 6.5. PROXIES, ETC............................................42
SECTION 6.6. HOLDER ACTION BY WRITTEN CONSENT........................42
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES...............43
SECTION 6.8. ACTS OF HOLDERS.........................................43
SECTION 6.9. INSPECTION OF RECORDS...................................44
ARTICLE VII REPRESENTATIONS AND WARRANTIES..................................44
SECTION 7.1. REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE.......................44
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.............45
ARTICLE VIII THE ISSUER TRUSTEES; THE ADMINISTRATORS........................46
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.....................46
SECTION 8.2. EVENTS OF DEFAULT; WAIVER...............................48
SECTION 8.3. CERTAIN NOTICES.........................................49
SECTION 8.4. CERTAIN RIGHTS OF PROPERTY TRUSTEE......................49
SECTION 8.5. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.............................................51
SECTION 8.6. MAY HOLD SECURITIES.....................................51
SECTION 8.7. COMPENSATION; INDEMNITY; FEES...........................51
SECTION 8.8. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES AND ADMINISTRATORS............................52
SECTION 8.9. CONFLICTING INTERESTS...................................53
SECTION 8.10. CO-TRUSTEES AND SEPARATE TRUSTEE.......................53
SECTION 8.11. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR......55
SECTION 8.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.................56
SECTION 8.13. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS...............................................56
SECTION 8.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
DEPOSITOR OR ISSUER TRUST..............................57
SECTION 8.15. TRUSTEE MAY FILE PROOFS OF CLAIM.......................57
SECTION 8.16. REPORTS BY PROPERTY TRUSTEE............................57
SECTION 8.17. REPORTS TO THE PROPERTY TRUSTEE........................58
SECTION 8.18. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.......58
SECTION 8.19. NUMBER OF ISSUER TRUSTEES..............................58
SECTION 8.20. DELEGATION OF POWER....................................59
SECTION 8.21. APPOINTMENT OF ADMINISTRATORS..........................59
SECTION 8.22. DELAWARE TRUSTEE.......................................59
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ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER..............................60
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE........................60
SECTION 9.2. EARLY DISSOLUTION.......................................60
SECTION 9.3. TERMINATION.............................................61
SECTION 9.4. LIQUIDATION.............................................61
SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR
REPLACEMENTS OF THE ISSUER TRUST.......................63
ARTICLE X MISCELLANEOUS PROVISIONS..........................................64
SECTION 10.1. LIMITATION OF RIGHTS OF HOLDERS........................64
SECTION 10.2. AMENDMENT..............................................64
SECTION 10.3. SEPARABILITY...........................................65
SECTION 10.4. GOVERNING LAW..........................................65
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY.......................66
SECTION 10.6. SUCCESSORS.............................................66
SECTION 10.7. HEADINGS...............................................66
SECTION 10.8. REPORTS, NOTICES AND DEMANDS...........................67
SECTION 10.9 AGREEMENT NOT TO PETITION...............................67
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST
INDENTURE ACT..........................................68
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
AND INDENTURE..........................................68
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
Exhibit E Form of Restricted Securities Certificate
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AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 20, 1998,
is by and among (i) UNITED COMMUNITY BANKS, INC., a Georgia bank holding company
(including any successors or assigns, the "DEPOSITOR"), (ii) 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"), and (iii) CHASE MANHATTAN BANK
DELAWARE, a Delaware banking corporation, as Delaware trustee (the "DELAWARE
TRUSTEE") (the Property Trustee and the Delaware Trustee are referred to
collectively herein as the "ISSUER TRUSTEES") and (iv) the several Holders, as
hereinafter defined.
W I T N E S S E T H:
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WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by entering into a certain Trust Agreement, dated as of July 13, 1998
(the "ORIGINAL TRUST AGREEMENT"), and by the execution and filing by the
Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on July 13, 1998 (the "CERTIFICATE OF TRUST"),
attached as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance of the Common Securities by
the Issuer Trust to the Depositor, (ii) the issuance and sale of the Capital
Securities by the Issuer Trust pursuant to the Purchase Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the right, title
and interest in the Junior Subordinated Debentures, (iv) the appointment of the
Administrators, (v) the mandatory exchange by the Property Trustee with the
Depositor of the Private Debentures for the Exchange Debentures, and the
exchange by the Issuer Trust with the Holders of the Private Capital Securities
for the Exchange Capital Securities, each such exchange registered under the
Securities Act; and (vi) the addition of the Property Trustee as a party to this
Trust Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be legally
bound, 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 and include the plural as well as the singular;
(b) All other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) 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 as in effect at the time of computation;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement;
(f) The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(g) All references to the date the Capital Securities were originally
issued shall refer to the date the 8.125% Capital Securities were originally
issued.
"ACT" has the meaning specified in Section 6.8.
"ADDITIONAL AMOUNTS" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"ADDITIONAL SUMS" has the meaning specified in Section 10.6 of the
Indenture.
"ADJUSTED TREASURY RATE" means, with respect to any Redemption Date,
the Treasury Rate plus (i) 200 basis points if such Redemption Date occurs on or
before December 31, 1998 or (ii) 150 basis points if such Redemption Date occurs
after December 31, 1998.
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"ADMINISTRATORS" means each Person appointed in accordance with Section
8.21 solely in such Person's capacity as Administrator of the Issuer Trust
heretofore formed and continued hereunder and not in such Person's individual
capacity, or any successor Administrator appointed as herein provided; with the
initial Administrators being Jimmy C. Tallent and Christopher J. Bledsoe.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the Depositary for such Capital 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 or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding-up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"BANKRUPTCY LAWS" has the meaning specified in Section 10.9.
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"BOARD OF DIRECTORS" means the board of directors of the Depositor or
the Executive Committee of the board of directors of the Depositor (or any other
committee of the board of directors of the Depositor performing similar
functions) or a committee designated by the board of directors of the Depositor
(or any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Issuer Trustees.
"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, New York, or the City
of Blairsville, Georgia are authorized or required by law or executive order to
remain closed or (c) a day on which the Property Trustee's Corporate Trust
Office or the Delaware Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
"CAPITAL SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as
Exhibit D.
"CAPITAL SECURITY" means a preferred undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $1,000 and having
the rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"CAPITAL TREATMENT EVENT" means, in respect of the Issuer Trust, the
reasonable determination by the Depositor that, as a result of the occurrence of
any amendment to, or change (including any announced prospective change) in, the
laws (or any rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the date of the
issuance of the Capital Securities of the Issuer Trust, there is more than an
insubstantial risk that the Depositor will not be entitled to treat an amount
equal to the Liquidation Amount of such Capital Securities as "Tier 1 Capital"
(or the then equivalent thereof) for purposes of the risk-based capital adequacy
guidelines of the Board of Governors of the Federal Reserve System, as then in
effect and applicable to the Depositor.
"CEDE" means Cede & Co.
"CERTIFICATE DEPOSITARY AGREEMENT" means the agreement among the Issuer
Trust, the Property Trustee and the Depositary, as the initial Clearing Agency,
dated as of the Closing Date, substantially in the form attached as Exhibit B,
as the same may be amended and supplemented from time to time.
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"CERTIFICATE OF TRUST" has the meaning specified in the preamble to
this Trust Agreement.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depositary shall be the
initial Clearing Agency.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"CLOSING DATE" means the Closing Time, which date is also the date of
execution and delivery of this Trust Agreement.
"CLOSING TIME" has the meaning specified in the Purchase Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, as amended, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"COMMON SECURITY" means an undivided beneficial interest in the assets
of the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"COMPARABLE TREASURY ISSUE" means with respect to any Redemption Date
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after July 15, 2008, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"COMPARABLE TREASURY PRICE" means (A) the average of five Reference
Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest of such Reference Treasury Dealer Quotations, or (B) if the Debenture
Trustee obtains fewer than five
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such Reference Treasury Dealer Quotations, the average of all such Reference
Treasury Dealer Quotations.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Property Trustee located in the City of New York which at the time of the
execution of this Trust Agreement is located at 450 West 33rd Street, 15th
Floor, New York, New York 10001.
"DEBENTURE EVENT OF DEFAULT" means an "Event of Default" as defined
in the Indenture.
"DEBENTURE REDEMPTION DATE" means, with respect to any Junior
Subordinated Debentures to be redeemed under the Junior Subordinated Indenture,
the date fixed for redemption of such Debentures under the Indenture.
"DEBENTURE TRUSTEE" means The Chase Manhattan Bank, a New York banking
corporation and any successor.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801, ET SEQ., as it may be amended from time to
time.
"DELAWARE TRUSTEE" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Issuer Trust continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"DEPOSITARY" means The Depository Trust Company or any successor
thereto.
"DEPOSITOR" has the meaning specified in the preamble to this Trust
Agreement.
"DISTRIBUTION DATE" has the meaning specified in Section 4.1(a).
"DISTRIBUTIONS" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"EARLY TERMINATION EVENT" has the meaning specified in Section 9.2.
"EVENT OF DEFAULT" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer 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
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(c) default by the Issuer 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 Issuer Trustees in this Trust Agreement (other
than a covenant or warranty a default in the performance of which or the breach
of which is dealt with in clause (b) or (c) above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer Trustees and the Depositor by the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Capital Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "NOTICE OF
DEFAULT" hereunder; or
(e) the occurrence of any Bankruptcy Event with respect to the Property
Trustee or all or substantially all of its property if a successor Property
Trustee has not been appointed within a period of 90 days thereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, as amended from time to time.
"EXCHANGE CAPITAL SECURITIES" means Capital Securities representing
preferred undivided beneficial interests in the assets of the Issuer Trust,
issued by the Issuer Trust in an exchange offer for the Private Capital
Securities, such exchange offer being registered under the Securities Act, all
pursuant to the Registration Rights Agreement; PROVIDED HOWEVER that the
aggregate Liquidation Amount of the Private Capital Securities and the Exchange
Capital Securities at any one time outstanding shall not exceed $21,000,000.
"EXCHANGE DEBENTURES" means a new series of junior subordinated
debentures issued by the Depositor in a mandatory exchange offer for the Private
Debentures, such exchange offer being registered under the Securities Act, all
pursuant to the Debenture Exchange and Registration Rights Agreement.
"EXCHANGE GUARANTEE" means the Exchange Guarantee extended by the
Depositor for the benefit of the Holders of Capital Securities pursuant to the
Exchange Guarantee Agreement, and registered under the Securities Act pursuant
to the Registration Rights Agreement.
"EXCHANGE GUARANTEE AGREEMENT" means the Guarantee Agreement to be
entered into by the Depositor, as Guarantor and The Chase Manhattan Bank, as
Guarantee Trustee, pursuant to the Registration Rights Agreement.
"EXCHANGE OFFER" means an exchange offer of the Exchange Securities for
the Securities, which is registered under the Securities Act pursuant to the
Registration Rights Agreement.
"EXPIRATION DATE" has the meaning specified in Section 9.1.
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"GLOBAL CAPITAL SECURITIES CERTIFICATE" means a Capital Securities
Certificate evidencing ownership of Global Capital Securities.
"GLOBAL CAPITAL SECURITY" means a Capital Security, the ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4.
"GUARANTEE" means (i) prior to the exchange in connection with the
Exchange Offer, the Private Guarantee and (ii) following the exchange in
connection with the Exchange Offer, the Exchange Guarantee.
"GUARANTEE AGREEMENT" means the Guarantee Agreement dated as of July
20, 1998, between the Depositor, as Guarantor, and The Chase Manhattan Bank, as
Guarantee Trustee.
"HOLDER" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"INDENTURE" means the Junior Subordinated Indenture, dated as of July
20, 1998, between the Depositor and the Debenture Trustee (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"INITIAL PURCHASER" has the meaning specified in the Purchase
Agreement.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940,
as amended.
"INVESTMENT COMPANY EVENT" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Issuer
Trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or prospective change
becomes effective or would become effective, as the case may be, on or after the
date of the issuance of the Capital Securities.
"ISSUER TRUST" means United Community Capital Trust.
"ISSUER TRUSTEES" means, collectively, the Property Trustee and the
Delaware Trustee.
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"JUNIOR SUBORDINATED DEBENTURES" means the aggregate principal amount
of the Depositor's 8.125% Junior Subordinated Deferrable Interest Debentures due
July 15, 2028, issued pursuant to the Indenture.
"LIEN" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"LIKE AMOUNT" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Capital Securities based upon the relative
Liquidation Amounts of such classes and (b) with respect to a distribution of
Junior Subordinated Debentures to Holders of Trust Securities in connection with
a dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.
"LIQUIDATION AMOUNT" means the stated amount of $1,000 per Trust
Security.
"LIQUIDATION DATE" means the date on which Junior Subordinated
Debentures are to be distributed to Holders of Trust Securities in connection
with a dissolution and liquidation of the Issuer Trust pursuant to Section 9.4.
"LIQUIDATION DISTRIBUTION" has the meaning specified in
Section 9.4(d).
"MAJORITY IN LIQUIDATION AMOUNT OF THE CAPITAL SECURITIES" or "MAJORITY
IN LIQUIDATION AMOUNT OF THE COMMON SECURITIES" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chief
Executive Officer, President or an Executive Vice President, a Senior Vice
President or Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
party provided herein. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
(other than pursuant to Section 8.17) 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;
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(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 each such officer,
such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor or
any Issuer Trustee.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the preamble
to this Trust Agreement.
"OTHER CAPITAL SECURITIES" means the Capital Securities sold by the
Initial Purchaser in the initial offering contemplated by the Purchase Agreement
to Institutional Accredited Investors in reliance on an exemption from the
registration requirement of the Securities Act other than Rule 144A.
"OUTSTANDING," with respect to Trust Securities, means, as of the date
of determination, all Trust Securities theretofore executed, authenticated 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 for the Holders of such Capital Securities, PROVIDED that if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid, or in exchange for, or in
lieu of which, other Trust Securities have been executed and delivered pursuant
to Sections 5.4, 5.5 and 5.6 PROVIDED, HOWEVER, that in determining whether the
Holders of the requisite Liquidation Amount of the Outstanding Capital
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Capital Securities owned by the Depositor, any
Issuer Trustee, any Administrator or any Affiliate of the Depositor, shall be
disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Issuer Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Capital
Securities that such Issuer Trustee knows to be so owned shall be so disregarded
and (b) the foregoing shall not apply at any time when all of the Outstanding
Capital Securities are owned by the Depositor, one or more of the Issuer
Trustees, one or more of the Administrators and/or any such Affiliate. Capital
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Administrators
the pledgee's right so to act with respect to such Capital Securities and that
the pledgee is not the Depositor or any Affiliate of the Depositor.
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"OWNER" means each Person who is the beneficial owner of Global Capital
Securities as reflected in the records of the Clearing Agency or, if a Clearing
Agency Participant is not the Owner, then as reflected in the records of a
Person maintaining an account with such Clearing Agency (directly or
indirectly), in accordance with the rules of such Clearing Agency.
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing corporate
trust account maintained with the Property Trustee in its corporate trust
department for the benefit of the Holders in which all amounts paid in respect
of the Junior Subordinated Debentures 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.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, company,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"PORTAL MARKET" means the Private Offering, Resales and Trading
through Automated Linkages Market operated by the National Association of
Securities Dealers, Inc. (or any successor thereto).
"PRIVATE CAPITAL SECURITIES" means the $21,000,000 aggregate
Liquidation Amount of the Issuer Trust's 8.125% Capital Securities representing
preferred undivided beneficial interests in the assets of the Issuer Trust,
having a Liquidation Amount of $1,000 per Capital Security and having the rights
provided therefor in this Trust Agreement, and the certificates of which
initially shall bear legends indicating that they have not been registered under
the Securities Act and restricting transfers thereof.
"PRIVATE DEBENTURES" means the $21,650,000 aggregate principal amount
of the Depositor's 8.125% Junior Subordinated Deferrable Interest Debentures due
July 15, 2028, issued pursuant to the Indenture on the Closing
Date.
"PRIVATE GUARANTEE" means the Guarantee extended by the Depositor for
the benefit of the Holders of Private Capital Securities pursuant to the
Guarantee Agreement.
"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 Issuer Trust formed and continued hereunder and not in
its individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
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"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of July 15,
1998, among the Issuer Trust, the Depositor and the Initial Purchaser, as the
same may be amended from time to time.
"QUOTATION AGENT" means Wheat First Securities, Inc. and its
successors; PROVIDED, HOWEVER, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Depositor shall substitute therefor another Primary Treasury
Dealer.
"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 Junior Subordinated Debenture redemption date and
the stated maturity of the Junior Subordinated Debentures shall be a Redemption
Date for a Like Amount of Trust Securities, including but not limited to any
date of redemption pursuant to the occurrence of any Special Event.
"REDEMPTION PRICE" means:
(a) in the case of a redemption, other than as provided in paragraph
(b) below, the following prices expressed in percentages of the Liquidation
Amount, together with accumulated Distributions to but excluding the date fixed
for redemption, if redeemed during the 12-month period beginning January 1:
YEAR REDEMPTION PRICE
---- ----------------
2008 104.06 %
2009 103.66
2010 103.25
2011 102.84
2012 102.44
2013 102.03
2014 101.63
2015 101.22
2016 100.81
2017 100.41
and 100% on or after January 1, 2018.
(b) in the case of a redemption prior to July 15, 2008 following a Tax
Event, Investment Company Event or Capital Treatment Event, an amount equal to
for each Capital Security the Make-Whole Amount for a corresponding $1,000
principal amount of Junior Subordinated Debentures together with accumulated
Distributions to but excluding the date fixed for redemption. The "MAKE-WHOLE
AMOUNT" will be equal to the greater of (i) 100% of the principal amount of such
Junior Subordinated Debentures, or (ii) as determined by a Quotation Agent, the
sum of the present values of the principal amount and premium payable as part of
the Redemption Price with respect to an optional redemption of such Junior
Subordinated Debentures
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on July 15, 2008, together with the present values of scheduled payments of
interest (not including the portion of any such payments of interest accrued as
of the Redemption Date) from the Redemption Date to July 15, 2008 (the
"REMAINING LIFE"), in each case discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate. The Redemption Price in the case of a redemption on or
after July 15, 2008 following a Tax Event, Investment Company Event or Capital
Treatment Event shall equal the Redemption Price then applicable to a redemption
under paragraph (a) above.
"REFERENCE TREASURY DEALER" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Debenture Trustee after
consultation with the Depositor.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
"REGISTRATION RIGHTS AGREEMENT" means an agreement dated July 20, 1998,
among the Depositor, the Trust and the Initial Purchaser.
"REGULATION D" means Regulation D under the Securities Act (or any
successor provision), as it may be amended from time to time.
"RULE 144" means Rule 144 as promulgated under the Securities Act, or
any successor rule.
"RELEVANT TRUSTEE" has the meaning specified in Section 8.11.
"RESPONSIBLE OFFICER" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary, trust officer, senior trust officer or any other officer of
the Property Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of the Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"RESTRICTED CAPITAL SECURITIES" means all Capital Securities, the
Capital Securities Certificate for which is required pursuant to Section 5.5(c)
to bear a Restricted Capital Securities Legend. Such term includes the Global
Capital Securities Certificate.
"RESTRICTED CAPITAL SECURITIES LEGEND" means a legend substantially in
the form of the legend required in the form of a Capital Securities Certificate
set forth in Exhibit D to be placed upon a Restricted Capital Security.
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"RESTRICTED SECURITIES CERTIFICATE" means a certificate
substantially in the form set forth in Exhibit E.
"REGULATION S" means Regulation S under the Securities Act or any
successor provision.
"RULE 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"RULE 144A CAPITAL SECURITIES" means the Capital Securities purchased
by the Initial Purchaser from the Issuer Trust pursuant to the Purchase
Agreement, other than the Other Capital Securities.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and any
successor statute thereto, in each case as amended from time to time.
"SENIOR INDEBTEDNESS" has the meaning specified in the Indenture.
"SECURITIES REGISTER" AND "SECURITIES REGISTRAR" have the respective
meanings specified in Section 5.5.
"SPECIAL EVENT" means any Tax Event, Capital Treatment Event or
Investment Company Event.
"SUCCESSOR CAPITAL SECURITIES CERTIFICATE" of any particular Capital
Securities Certificate means every Capital Securities Certificate issued after,
and evidencing all or a portion of the same beneficial interest in the Issuer
Trust as that evidenced by, such particular Capital Securities Certificate; and,
for the purposes of this definition, any Capital Securities Certificate executed
and delivered under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the mutilated,
destroyed, lost or stolen Capital Securities Certificate.
"SUCCESSOR CAPITAL SECURITY" has the meaning specified in Section 9.5.
"TAX EVENT" means the receipt by the Issuer Trust of an Opinion of
Counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of issuance of the Capital Securities, there is more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to United States Federal income
tax with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest
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payable by the Depositor on the Junior Subordinated Debentures is not, or within
90 days of the delivery of such Opinion of Counsel will not be, deductible by
the Depositor, in whole or in part, for United States federal income tax
purposes, or (iii) the Issuer Trust is, or will be within 90 days of the
delivery of such Opinion of Counsel, subject to more than a DE MINIMIS amount of
other taxes, duties or other governmental charges.
"TREASURY RATE" means (i) the yield, under the heading which represents
the average for the week immediately prior to the calculation date, appearing in
the most recently published statistical release designated "H.15 (519)" or any
successor publication which is published weekly by the Board of Governors of the
Federal Reserve System and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the Remaining
Life (if no maturity is within three months before or after the Remaining Life,
yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding to the
nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date. The Treasury
Rate shall be calculated on the third Business Day preceding the Redemption
Date.
"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 (i) all exhibits hereto, and (ii) for
all purposes of this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Amended and Restated Trust
Agreement and any modification, amendment or supplement, respectively.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 or any
successor statute, in each case as amended from time to time.
"TRUST PROPERTY" means (a) the Junior Subordinated Debentures, (b) any
cash on deposit in, or owing to, the Payment Account, (c) all proceeds and
rights in respect of the foregoing and (d) 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 SECURITIES CERTIFICATE" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"TRUST SECURITY" means any one of the Common Securities or the
Capital Securities.
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ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. NAME.
The Issuer Trust continued hereby shall be known as "United Community
Capital Trust", as such name may be modified from time to time by the
Administrators following written notice to the Holders of Trust Securities and
the Issuer Trustees, in which name the Administrators and the Issuer Trustees
may engage in the transactions contemplated hereby, make and execute contracts
and other instruments on behalf of the Issuer 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, Wilmington, Delaware, 19801,
Attention: Corporate Trustee Administration Department, or such other address in
the State of Delaware as the Delaware Trustee may designate by written notice to
the Holders and the Depositor. The principal executive office of the Issuer
Trust is in care of United Community Banks, Inc., 59 Highway 515, Blairsville,
Georgia 30512, Attention: Jimmy C. Tallent.
SECTION 2.3. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES.
The Issuer Trustees acknowledge receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constitutes the initial Trust Property. The Depositor shall pay all
organizational expenses of the Issuer Trust as they arise or shall, upon request
of any Issuer Trustee, promptly reimburse such Issuer Trustee for any such
expenses paid by such Issuer Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.4. ISSUANCE OF THE CAPITAL SECURITIES.
The Depositor and the Issuer Trust executed and delivered the Purchase
Agreement as of July 15, 1998, pursuant to the Original Trust Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrator, on behalf of the Issuer Trust, shall by manual or facsimile
signature execute in accordance with Section 5.3 and the Property Trustee shall
authenticate in accordance with Section 5.3 and deliver to the Initial
Purchaser, Capital Securities Certificates, registered in the names requested by
the Initial Purchaser, in an aggregate amount of 21,000 Capital Securities
having an aggregate Liquidation Amount of $21,000,000, against receipt of the
aggregate purchase price of such Capital Securities of $20,873,370 by the
Property Trustee. The certificates of authentication to be delivered by the
Property Trustee shall be substantially in the forms as set forth on Exhibits C
and D attached hereto.
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SECTION 2.5. ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF JUNIOR SUBORDINATED DEBENTURES.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall by manual or
facsimile signature execute or cause to be executed in accordance with Section
5.3 and the Property Trustee shall authenticate in accordance with Section 5.3
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of 650 Common Securities having an
aggregate Liquidation Amount of $650,000 against receipt of the aggregate
purchase price of such Common Securities of $650,000 by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Issuer Trust,
shall subscribe for and purchase from the Depositor the Junior Subordinated
Debentures, registered in the name of the Property Trustee and having an
aggregate principal amount equal to $21,650,000, and, in satisfaction of the
purchase price for such Junior Subordinated Debentures, the Property Trustee, on
behalf of the Issuer Trust, shall deliver to the Depositor the sum of
$21,523,370 (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4, and (ii) the first sentence
of this Section 2.5) and receive on behalf of the Issuer Trust the Junior
Subordinated Debentures.
SECTION 2.6. DECLARATION OF TRUST.
The exclusive purposes and functions of the Issuer Trust are to (a)
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Junior Subordinated Debentures, and (b) engage in only those other
activities necessary, convenient or incidental thereto. The Depositor hereby
appoints the Issuer Trustees as trustees of the Issuer Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Issuer
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Issuer Trust and the Holders. The
Depositor hereby appoints the Administrators, with such Administrators having
all rights, powers and duties set forth herein with respect to accomplishing the
purposes of the Issuer Trust, and the Administrators hereby accept such
appointment; PROVIDED, HOWEVER, that it is the intent of the parties hereto that
such Administrators shall not be trustees or, to the fullest extent permitted by
law, fiduciaries with respect to the Issuer Trust and this Trust Agreement shall
be construed in a manner consistent with such intent. 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
Administrators set forth herein. The Delaware Trustee shall be one of the
trustees of the Issuer 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.
SECTION 2.7. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Issuer Trustees and the Administrators shall conduct the
affairs of the Issuer Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set
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forth in paragraph (b) of this Section and in accordance with the following
provisions (i) and (ii), the Property Trustees and the Administrators shall act
as follows:
(i) Each Administrator shall:
(A) comply with the Purchase Agreement regarding the
issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act,
applicable state securities or blue sky laws and the Trust
Indenture Act;
(C) assist in the listing of the Capital Securities upon
such securities exchange or exchanges as shall be determined by
the Depositor, with the registration of the Capital Securities
under the Exchange Act, if required, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing;
(D) execute the Trust Securities on behalf of the Issuer
Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer
identification number for the Issuer Trust;
(F) unless otherwise determined by the Depositor or Holders
of at least a Majority in Liquidation Amount of the Capital
Securities or as otherwise required by the Delaware Business
Trust Act or the Trust Indenture Act, execute on behalf of the
Issuer Trust any documents that the Administrators have the power
to execute pursuant to this Trust Agreement, including without
limitation, a Junior Subordinated Debentures Purchase Agreement
and a Common Securities Purchase Agreement, both by and between
the Issuer Trust and the Depositor;
(G) have the power and authority to cause the Issuer Trust
to enter into, and to execute, deliver and perform on behalf of
the Issuer Trust, the Registration Rights Agreements, and such
other agreements as may be necessary or desirable in connection
with the purposes and function of the Issuer Trust;
(H) assist in the registration of the Exchange Offer and
the Exchange Capital Securities under the Securities Act, and
under the state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust indenture under
the Trust Indenture Act, all in accordance with the Capital
Securities Exchange and Registration Rights Agreement;
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(I) send notices (other than notices of default) and other
information regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in accordance with this
Trust Agreement;
(J) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of this Trust
Agreement.
(ii) The Property Trustee shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and
any other payments made in respect of the Junior Subordinated
Debentures in the Payment Account;
(D) the distribution, through the Paying Agent, of amounts
owed 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 Junior Subordinated Debentures
(subject to the terms of this Trust Agreement);
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated
Debentures 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 Issuer Trust
and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under paragraph
(b), (c), (d), or (e) of the definition of such term if such
Event of Default is by or with respect to the Property Trustee),
comply with the provisions of this Trust Agreement and take any
action 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);
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(J) the exchange of the Private Guarantee for the Exchange
Guarantee in an exchange in connection with the Exchange Offer
pursuant to the Registration Rights Agreement; and
(K) the exchange of the Private Debentures for the Exchange
Debentures in an exchange in connection with the Exchange Offer
pursuant to the Registration Rights Agreement;
provided, however, that nothing in this Section 2.7(a)(ii) shall
require the Property Trustee to take any action that is not otherwise
required in this Trust Agreement and the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the
Administrators set forth in Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Issuer Trust
(or the Issuer Trustees or Administrators acting on behalf of the Issuer Trust)
shall not undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the Issuer
Trustees nor the Administrators shall (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) take any action that would cause the Issuer Trust to
become taxable other than as a grantor trust for United States Federal income
tax purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt, or (v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Property Trustee shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Issuer Trust or the Holders in
their capacity as Holders.
(c) In connection with the issue and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist the Issuer Trust
with respect to, or effect on behalf of the Issuer 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 preparation by the Issuer Trust of an offering memorandum
in relation to the Capital Securities, including any amendments thereto
and the taking of any action necessary or desirable to sell the Capital
Securities in a transaction or a series of transactions exempt from the
registration requirements of the Securities Act;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale all or part of the Capital
Securities and the determination of any and all such acts, other than
actions that must be taken by or on behalf of the Issuer Trust, and the
advice to the Administrators of actions they must take on behalf of the
Issuer Trust, and the preparation for execution and filing of any
documents to be executed and filed by the Issuer Trust or on behalf of
the Issuer Trust, as the Depositor
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deems necessary or advisable in order to comply with the applicable
laws of any such States in connection with the sale of the Capital
Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Purchase Agreement providing for the sale of the
Capital Securities;
(iv) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Exchange Offer, including any amendments thereto and/or a "shelf"
registration statement to register the Private Capital Securities, the
Private Guarantee and the Private Debentures, in each case in
accordance with the provisions of the Registration Rights Agreement;
and
(v) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrators
are authorized and directed to conduct the affairs of the Issuer Trust and to
operate the Issuer Trust so that the Issuer Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act,
and will not be taxable other than as a grantor trust for the United States
Federal income tax purposes and so that the Junior Subordinated Debentures will
be treated as indebtedness of the Depositor for United States Federal income tax
purposes. In this connection, the Administrators and the Holders of Common
Securities are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that the Administrators
and Holders of Common Securities determine in their discretion to be necessary
or desirable for such purposes, as long as such action does not adversely affect
in any material respect the interests of the Holders of the Outstanding Capital
Securities. In no event shall the Administrators or the Issuer Trustees be
liable to the Issuer Trust or the Holders for any failure to comply with this
section that results from a change in law or regulations or in the
interpretation thereof.
SECTION 2.8. ASSETS OF TRUST.
The assets of the Issuer Trust shall consist solely of the Trust
Property.
SECTION 2.9. TITLE TO TRUST PROPERTY.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Issuer Trust and the Holders in
accordance with this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
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 its agents 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 Junior Subordinated Debentures.
Amounts held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
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 Amounts) will be
made on the Trust Securities at the rate and on the dates that payments of
interest (including of Additional Interest, as defined in the Indenture) are
made on the Junior Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative and
will accumulate whether or not there are funds of the Issuer Trust
available for the payment of Distributions. Distributions shall
accumulate from July 20, 1998, and, except in the event (and to the
extent) that the Depositor exercises its right to defer the payment of
interest on the Junior Subordinated Debentures pursuant to the
Indenture, shall be payable semi-annually in arrears on January 15 and
July 15 of each year, commencing on January 15, 1999. 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 (without any
additional Distributions or other payment in respect of any such
delay), with the same force and effect as if made on the date on which
such payment was originally payable (each date on which distributions
are payable in accordance with this Section 4.1(a), a "DISTRIBUTION
DATE").
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(ii) The Trust Securities shall be entitled to Distributions
payable at a rate of 8.125% 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 two. The amount of Distributions payable for any period shall
include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred and
is continuing, the Depositor has the right under the Indenture to defer
the payment of interest on the Junior Subordinated Debentures at any
time and from time to time for a period not exceeding 10 consecutive
semi-annual periods (an "Extension Period"), provided that no Extension
Period may extend beyond July 15, 2028 or end on a day other than an
Interest Payment Date (as defined in the Indenture). As a consequence
of any such deferral, semi-annual Distributions on the Trust Securities
by the Trust will also be deferred (and the amount of Distributions to
which Holders of the Trust Securities are entitled will accumulate
additional Distributions thereon at a rate of 8.125% per annum,
compounded semi-annually) from the relevant payment date for such
Distributions, computed on the basis of a 360-day year of twelve 30-day
months and the actual days elapsed in a partial month in such period.
Additional Distributions payable for each full Distribution period will
be computed by dividing the rate per annum by two. The term
"Distributions" as used in Section 4.1 shall include any such
additional Distributions provided pursuant to this Section 4.1(a)(iii).
(iv) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Issuer Trust has funds
then on hand and available in the Payment Account for the payment of
such Distributions.
(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 December 31 or
June 30 (whether or not a Business Day).
SECTION 4.2. REDEMPTION.
(a) On each Junior Subordinated Debenture Redemption Date and on the
stated maturity of the Junior Subordinated Debentures, the Issuer Trust will be
required to redeem a Like Amount of Trust Securities at the applicable
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
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each Holder of Trust Securities to be redeemed, at such Holder's address
appearing in the Security Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
manner of calculation thereof;
(iii) the CUSIP number or CUSIP numbers of the Capital
Securities affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date,
except as provided in Section 4.2(d) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use "CUSIP" or
"private placement" numbers (if then generally in use), and, if so, the Property
Trustee shall indicate the "CUSIP" or "private placement" 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 material.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of Junior Subordinated Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Issuer Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption Price.
(d) If the Issuer Trust gives a notice of redemption in respect of any
Capital Securities, then, by 10:00 a.m., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made, then by 12:00 noon, New
York City time, on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, with respect to Capital Securities held in global form,
irrevocably deposit with the Clearing Agency for such Capital Securities, to the
extent available therefor, funds sufficient to pay the applicable Redemption
Price and will give such Clearing Agency irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Capital Securities. With
respect to Capital Securities that are not held in global
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form, the Property Trustee, subject to Section 4.2(c), 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
Capital Securities upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
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 applicable Redemption Price is payable is not a
Business Day, then payment of the applicable Redemption Price payable on such
date will 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. 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 Issuer Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will continue
to accumulate, as set forth in Section 4.1 and in accordance with the continued
accrual of interest on the Junior Subordinated Debentures, from the Redemption
Date originally established by the Issuer Trust for such Trust Securities to the
date such applicable Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the applicable 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 such Trust Securities to be redeemed shall be allocated
PRO RATA to the Common Securities and the Capital Securities based on the
relative Liquidation Amounts of such classes, subject to the requirement that no
Holder shall hold Capital Securities with an aggregate Liquidation Amount of
less than $100,000 after such redemption. The particular Capital Securities to
be redeemed shall be selected by the Property Trustee by such method (including,
without limitation, on a PRO RATA basis based on their respective Liquidation
Amounts or by lot) as the Property Trustee shall deem fair and appropriate,
which may provide for the selection for redemption of portions (equal to $1,000
or integral multiples thereof) of the Liquidation Amount of Capital Securities
of a denomination larger than $1,000, not more than 60 days prior to the
Redemption Date from the Outstanding Capital Securities not previously called
for redemption, or if the Capital Securities are then held in the form of a
Global Capital Security, by the Clearing Agency in accordance with the customary
procedures for the Clearing Agency, PROVIDED that, after giving effect to such
redemption, no Holder shall hold Capital Securities with an aggregate
Liquidation Amount of less than $100,000, PROVIDED, however, that with respect
to Holders that would be required to hold less than 100 but more than zero
Capital Securities as a result of any such pro rata redemption, the Property
Trustee shall redeem each such Holder to either 100 Capital Securities or zero
Capital Securities. In any such proration, the Property Trustee shall make such
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adjustments so that any Capital Security to be redeemed shall, after such
redemption, be in an authorized denomination. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Capital Securities
selected for redemption and, in the case of any Capital 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 Capital Securities shall relate, in the
case of any Capital Securities redeemed or to be redeemed only in part, to the
portion of the aggregate Liquidation Amount of Capital Securities that has been
or is to be redeemed.
SECTION 4.3. SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation Distribution in
respect of, the Trust Securities, as applicable, shall be made, subject to
Section 4.2(e), PRO RATA among the Common Securities and the Capital Securities
based on the Liquidation Amount of such Trust Securities; PROVIDED, HOWEVER,
that if on any Distribution Date or Redemption Date any Event of Default
resulting from a Debenture Event of Default in Section 5.1(1) or 5.1(2) of the
Indenture shall have occurred and be continuing, no payment of any Distribution
(including any Additional 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 Amounts) on all Outstanding Capital
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 Capital 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 Capital 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 Amounts) on, or the Redemption Price of,
Capital Securities then due and payable. The existence of an Event of Default
does not entitle the Holders of Capital Securities to accelerate the maturity
thereof.
(b) In the case of the occurrence of any Event of Default resulting
from any Debenture Event of Default, the Holders of the Common Securities shall
be deemed to have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effects of all such Events of
Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Capital Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Capital 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 Amounts) in respect
of the Capital Securities shall be made by check mailed to the address of the
Person entitled thereto as
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such address shall appear on the Securities Register or, if the Capital
Securities are held by a Clearing Agency, such Distributions shall be made to
the Clearing Agency in immediately available funds, which will credit the
relevant accounts on the applicable Distribution Dates. Payments of
Distributions to Holders of $1,000,000 or more in aggregate Liquidation Amount
of Capital Securities may be made by wire transfer of immediately available
funds upon written request of such Holder to the Securities Registrar not later
than 15 calendar days prior to the date on which the Distribution is payable.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
SECTION 4.5. TAX RETURNS AND REPORTS.
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Issuer Trust. In this regard, the Administrators shall (a) prepare and file (or
cause to be prepared and filed) all Internal Revenue Service forms required to
be filed in respect of the Issuer Trust in each taxable year of the Issuer Trust
and (b) prepare and furnish (or cause to be prepared and furnished) to each
Holder all Internal Revenue Service forms required to be provided by the Issuer
Trust. The Administrators shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Property Trustee shall comply with United States Federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Holders under the Trust Securities.
On or before December 15 of each year during which any Capital
Securities are outstanding, the Administrators shall furnish to the Paying Agent
such information as may be reasonably requested by the Property Trustee in order
that the Property Trustee may prepare the information which it is required to
report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Internal Revenue Code of 1986, as amended. Such information
shall include the amount of original issue discount includible in income for
each outstanding Capital Security during such year, if any.
SECTION 4.6. PAYMENT OF TAXES, DUTIES, ETC. OF THE ISSUER TRUST.
Upon receipt under the Junior Subordinated Debentures of Additional
Sums and the written direction of any of the Administrators, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Issuer Trust by
the United States or any other taxing authority.
SECTION 4.7. PAYMENTS UNDER INDENTURE OR PURSUANT TO DIRECT ACTIONS.
Any amount payable hereunder to any Holder of Capital Securities shall
be reduced by the amount of any corresponding payment such Holder has directly
received pursuant to Section 5.8 of the Indenture or Section 5.13 of this Trust
Agreement.
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SECTION 4.8. LIABILITY OF THE HOLDER OF COMMON SECURITIES.
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.7 of the Indenture
regarding allocation of expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. INITIAL OWNERSHIP.
Upon the formation of the Issuer Trust and the contribution by the
Depositor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Issuer Trust.
SECTION 5.2. THE TRUST SECURITIES CERTIFICATES.
(a) The Capital Securities Certificates shall be issued in fully
registered form in minimum blocks of at least 100 (representing a minimum of
$100,000 aggregate Liquidation Amount and multiples of $1,000 in excess
thereof), and shall be at all times held in minimum blocks of 100, and the
Common Securities Certificates shall be issued in minimum blocks of 100
(representing a minimum of $100,000 aggregate Liquidation Amount). The Trust
Securities Certificates shall be executed on behalf of the Issuer Trust by
manual or facsimile signature of at least one Administrator. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Issuer Trust, shall be validly issued and entitled to the benefits
of this Trust Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of delivery of
such Trust Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Holder, and shall be entitled to the rights and
subject to the obligations of a Holder hereunder, upon due registration of such
Trust Securities Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Capital Securities Certificates
representing Rule 144A Capital Securities shall be issued in the form of a
Global Capital Securities Certificate registered in the name of Cede as DTC's
nominee and deposited with or on behalf of Depositary for credit by Depositary
to the respective accounts of the Owners thereof (or such other accounts as they
may direct). Except as set forth herein, record ownership of the Global Capital
Security may be transferred, in whole or in part, only to the Depositary,
another nominee of the Depositary or to a successor Depositary or its nominee.
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(c) Upon their original issuance, Capital Securities Certificates
representing Other Capital Securities shall be issued in definitive certificated
form and may not be represented by the Global Capital Security.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.3. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
At the Closing Time, an Administrator shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Issuer Trust and delivered to the Property
Trustee and upon such delivery the Property Trustee shall authenticate such
Trust Securities Certificates and deliver such Trust Securities Certificates
upon the written order of the Trust, executed by an Administrator thereof,
without further corporate action by the Depositor, in authorized denominations.
Only such Trust Securities Certificates as shall bear thereon a certificate of
authentication substantially in the form provided for herein executed by the
Property Trustee by manual signature of an authorized officer thereof shall be
entitled to the benefits of this Trust Agreement or be valid or obligatory for
any purpose.
SECTION 5.4. GLOBAL CAPITAL SECURITY.
(a) The Global Capital Security issued under this Trust Agreement shall
be registered in the name of the nominee of the Clearing Agency and delivered to
the Property Trustee as custodian therefor, and such Global Capital Security
shall constitute a single Capital Security for all purposes of this Trust
Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, the
Global Capital Security may not be exchanged in whole or in part for Capital
Securities registered, and no transfer of the Global Capital Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Capital Security, Cede, or other nominee thereof unless
(i) such Clearing Agency advises the Depositor and the Property Trustee in
writing that such Clearing Agency is no longer willing or able to properly
discharge its responsibilities as Clearing Agency with respect to such Global
Capital Security, and the Depositor is unable to locate a qualified successor,
(ii) the Issuer Trust (by an Administrator) at its option advises the Depositary
in writing that it elects to terminate the book-entry system through the
Clearing Agency, or (iii) there shall have occurred and be continuing an Event
of Default.
(c) If the Global Capital Security is to be exchanged for other Capital
Securities or cancelled in whole, it shall be surrendered by or on behalf of the
Clearing Agency or its nominee to the Securities Registrar for exchange or
cancellation as provided in this Article V. If the Global Capital Security is to
be exchanged for other Capital Securities or cancelled in part, or if another
Capital Security is to be exchanged in whole or in part for a beneficial
interest in the Global Capital Security, then either (i) such Global Capital
Security shall be so surrendered for
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exchange or cancellation as provided in this Article V or (ii) the Liquidation
Amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or cancelled or equal to the Liquidation Amount of
such other Capital Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Security Registrar, whereupon the Property Trustee, in accordance
with the Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of the Global Capital Security by the
Clearing Agency, accompanied by registration instructions, the Property Trustee
shall, subject to Section 5.4(b) and as otherwise provided in this Article V,
authenticate and deliver any Capital Securities issuable in exchange for such
Global Capital Security (or any portion thereof) in accordance with the
instructions of the Clearing Agency. The Property Trustee shall not be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.
(d) Every Capital Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, the Global
Capital Security or any portion thereof, whether pursuant to this Article V or
Article IV or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Capital Security, unless such Global Capital Security is
registered in the name of a Person other than the Clearing Agency for such
Global Capital Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner of the
Global Capital Security, shall be considered the Holder of the Capital
Securities represented by the Global Capital Security for all purposes under
this Trust Agreement and the Capital Securities, and owners of beneficial
interests in the Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to have any of the individual Capital Securities represented by the
Global Security registered in their names, shall not receive nor be entitled to
receive physical delivery of any such Capital Securities in definitive
certificated form and shall not be considered the Holders thereof under this
Trust Agreement. Accordingly, any such owner's beneficial interest in the Global
Capital Security shall be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Clearing Agency or its
nominee. Neither the Property Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the Clearing Agency.
(f) The rights of owners of beneficial interests in the Global Capital
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such owners and the
Clearing Agency.
SECTION 5.5. REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; CAPITAL SECURITIES CERTIFICATES; SECURITIES
ACT LEGENDS.
(a) (i) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
Capital Securities Certificates and transfers and exchanges of Capital
Securities Certificates in which the registrar and transfer agent
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with respect to the Capital Securities (the "SECURITIES REGISTRAR"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Capital Securities Certificates and Common Securities
Certificates (subject to Section 5.5(a)(i) in the case of Capital Securities and
Section 5.5(a)(ii) in the case of Private Capital Securities and subject to
Section 5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Capital Securities Certificates as herein provided.
Such register is herein sometimes referred to as the "SECURITIES REGISTER." The
Property Trustee is hereby appointed Securities Registrar for the purpose of
registering Capital Securities and transfers of Capital Securities as herein
provided.
Upon surrender for registration of transfer of any Capital Securities
Certificate at the offices or agencies of the Property Trustee designated for
that purpose an Administrator shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities Certificates of any authorized
denominations of like tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement.
At the option of the Holder, Capital Securities Certificates may be
exchanged for other Capital Securities Certificates of any authorized
denominations, of like tenor and aggregate Liquidation Amount and bearing such
restrictive legends as may be required by this Trust Agreement, upon surrender
of the Capital Securities to be exchanged at such office or agency. Whenever any
Capital Securities are so surrendered for exchange, an Administrator shall
execute and the Property Trustee shall authenticate and deliver the Capital
Securities that the Holder making the exchange is entitled to receive.
All Capital Securities Certificates issued upon any transfer or
exchange of Capital Securities shall be the valid obligations of the Issuer
Trust, evidencing the same debt, and entitled to the same benefits under this
Trust Agreement, as the Capital Securities Certificates surrendered upon such
transfer or exchange.
Every Capital Securities Certificate presented or surrendered for
transfer or exchange shall (if so required by the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee and the Securities Registrar, duly executed
by the Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Capital Securities, but the Property Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Capital Securities.
Neither the Issuer Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (x) to issue, register the transfer
of or exchange any Capital Security during a period beginning at the opening of
business 15 days before the day of selection for redemption of Capital
Securities pursuant to Article IV and ending at the close of business on the day
of mailing of the notice of redemption, or (y) to register the transfer of or
exchange any
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Capital Security so selected for redemption in whole or in part, except, in the
case of any such Capital Security to be redeemed in part, any portion thereof
not to be redeemed.
(ii) (A) In addition to the restrictions on transfer set forth in
Section 5.5(a)(i) and 5.5(a)(ii)(B), beneficial ownership of every Private
Capital Security is subject to the restrictions on transfer imposed by the
Securities Act and rules and regulations promulgated by the Commission
thereunder and each certificate representing Private Capital Securities shall
bear restrictive legends (the "Securities Act Legends") substantially in the
form set forth on Exhibit D hereto, unless such restrictions on transfer shall
be terminated in accordance with the provisions of this Section 5.5. The Holder
of each Private Capital Security, by such Holder's acceptance thereto, agrees to
be bound by such restrictions on transfer.
(B) The restrictions imposed by the Securities Act and
this Trust Agreement upon the transferability of any particular Private Capital
Security shall cease and terminate upon delivery by at least one Administrator
on behalf of the Issuer Trust to the Property Trustee of an Officers'
Certificate stating that such Private Capital Security has been sold pursuant to
an effective registration statement under the Securities Act, exchanged for a
corresponding Liquidation Amount of Exchange Capital Securities pursuant to an
effective registration statement under the Securities Act, or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto). Any Private Capital Security as to which such Administrator has
delivered to the Property Trustee an Officers' Certificate that such
restrictions on transfer shall have expired in accordance with their terms or
shall have terminated may, upon surrender of such Private Capital Security for
exchange to the Securities Registrar or any transfer agent in accordance with
the provisions of this paragraph (ii)(B) be exchanged for a new Capital
Security, of like tenor and aggregate Liquidation Amount, which shall not bear
the Securities Act Legends. The Administrator shall inform the Property Trustee
in writing of the effective date of any registration statement registering the
Private Capital Securities or the Exchange Capital Securities under the
Securities Act. The Property Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
Officers' Certificate.
As used in paragraphs (A) and (B) of this paragraph (ii), the term "transfer"
encompasses any sale, pledge, transfer or other disposition of any Private
Capital Security.
(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other
provision of this Trust Agreement, transfers and exchanges of Capital Securities
and beneficial interests in a Global Capital Security shall be made only in
accordance with this Trust Agreement.
(i) NON-GLOBAL RESTRICTED CAPITAL SECURITY TO GLOBAL CAPITAL
SECURITY. If the Holder of a Restricted Capital Security (other than
the Global Capital Security) wishes at any time to transfer all or any
portion of such Trust Security to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Global Capital
Security, such transfer may be effected only in accordance with the
provisions of this Clause (b)(i) and subject to the Applicable
Procedures. Upon receipt by the Securities Registrar of (A) such Trust
Security as provided in Section 5.5(a) and instructions
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satisfactory to the Securities Registrar directing that a beneficial
interest in the Global Capital Security in a specified Liquidation
Amount not greater than the Liquidation Amount of such Trust Security
be credited to a specified Clearing Agency Participant's account and
(B) a Restricted Securities Certificate duly executed by such Holder or
such Holder's attorney duly authorized in writing accompanied by a
certification that such transfer is being affected in accordance with
Rule 144A, then the Securities Registrar shall cancel such Trust
Security (and issue a new Trust Security in respect of any
untransferred portion thereof) as provided in Section 5.5(a) and
increase the aggregate Liquidation Amount of the Global Capital
Security by the specified Liquidation Amount as provided in Section
5.4(c).
(ii) NON-GLOBAL CAPITAL SECURITY TO NON-GLOBAL CAPITAL SECURITY.
A Trust Security that is not a Global Capital Security may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Trust Security that is not a Global Capital Security as
provided in Section 5.5(a) PROVIDED that if the Trust Security to be
transferred in whole or in part is a Restricted Capital Security, the
Security Registrar shall have received a Restricted Securities
Certificate duly executed by the transferor Holder or such Holder's
attorney duly authorized in writing. The Issuer Trust or the Depositor
may require from any Holder seeking to transfer any Private Capital
Security an Opinion of Counsel reasonably satisfactory to the Issuer
Trust or the Depositor, as the case may be, that such transfer complies
with the requirements of the securities laws of the United States and
any applicable laws of individual states and other jurisdictions.
(iii) EXCHANGES BETWEEN GLOBAL CAPITAL SECURITY AND NON-GLOBAL
TRUST SECURITY. A beneficial interest in the Global Capital Security
may be exchanged for a Trust Security that is not a Global Capital
Security only as provided in Section 5.4.
(iv) CERTAIN INITIAL TRANSFERS OF NON-GLOBAL TRUST SECURITIES. In
the case of Trust Securities initially issued other than in global
form, a transfer or exchange of such Trust Securities that does not
involve any change in beneficial ownership may be made to an
Institutional Accredited Investor or Investors as if such transfer or
exchange were not a transfer or exchange; PROVIDED that written
certification shall be provided by the transferee and transferor of
such Trust Securities to the Securities Registrar that such transfer or
exchange does not involve a change in beneficial ownership.
(v) LIMITATIONS RELATING TO PRINCIPAL AMOUNT. Notwithstanding any
other provision of this Trust Agreement and unless otherwise specified
as permitted by this Trust Agreement, Trust Securities or portions
thereof may be transferred or exchanged only in Liquidation Amounts of
not less than $100,000. Any transfer, exchange or other disposition of
Trust Securities in contravention of this Section 5.5(b)(v) shall be
deemed to be void and of no legal effect whatsoever, any such
transferee shall be deemed not to be the Holder or owner of any
beneficial interest in such Trust Securities for any purpose, including
but not limited to the receipt of Distributions
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payable on such Trust Securities, and such transferee shall be deemed
to have no interest whatsoever in such Trust Securities.
(c) RESTRICTED SECURITIES LEGEND. Except as set forth below and in
Section 5.5(a)(ii)(B), all Capital Securities shall bear a Restricted Capital
Securities Legend:
(i) subject to the following Clauses of this Section 5.5(c), a
Capital Security or any portion thereof that is exchanged, upon
transfer or otherwise, for a Global Capital Security or any portion
thereof shall bear the Restricted Capital Securities Legend while
represented thereby;
(ii) subject to the following Clauses of this Section 5.5(c), a
new Capital Security which is not a Global Capital Security which is
issued in exchange for another Capital Security (including a Global
Capital Security) or any portion thereof, upon transfer or otherwise,
shall, if such new Capital Security is required to be issued in the
form of a Restricted Capital Security, bear a Restricted Capital
Securities Legend;
(iii) a new Capital Security (other than a Global Capital
Security) that does not bear a Restricted Capital Securities Legend may
be issued in exchange for or in lieu of a Restricted Capital Security
or any portion thereof that bears such a legend if, in the Depositor's
judgment, placing such a legend upon such new Capital Security is not
necessary to ensure compliance with the registration requirements of
the Securities Act, and the Property Trustee, at the written direction
of the Issuer Trust in the form of an Officers' Certificate, shall
authenticate and deliver such new Capital Security as provided in this
Article V;
(iv) notwithstanding the foregoing provisions of this Section
5.5(c), a Successor Capital Security Certificate of a Capital Security
that does not bear a Restricted Capital Securities Legend shall not
bear such form of legend unless the Depositor has reasonable cause to
believe that such Successor Capital Security Certificate is a
"restricted security" within the meaning of Rule 144 under the
Securities Act, in which case the Property Trustee, at the written
direction of the Issuer Trust in the form of an Officers' Certificate,
shall authenticate and deliver a new Capital Security bearing a
Restricted Capital Securities Legend in exchange for such Successor
Capital Security Certificate as provided in this Article V; and
(v) Junior Subordinate Debentures distributed to a holder of
Capital Securities upon dissolution of the Issuer Trust shall bear a
Restricted Capital Securities Legend if the Capital Securities so
held bear a similar legend.
(d) EXCHANGE OF CAPITAL SECURITIES. The Capital Securities may be
exchanged for Exchange Capital Securities pursuant to the terms of the
Exchange Offer. In such an exchange, the Property Trustee shall make
the exchange as follows:
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The Depositor shall present the Property Trustee with an Officer's
Certificate certifying as follows:
(i) Upon issuance of the Exchange Capital Securities, the
transactions contemplated by the Exchange Offer have been consummated;
and
(ii) (A) the number of Capital Securities that are represented by
a Global Capital Security properly tendered in the Exchange Offer by
persons that certify in a Letter of Transmittal that they are not a
broker-dealer, they are not participating in a distribution and they
are not an affiliate of the Company and (B) the number of Capital
Securities that are represented by definitive certificated Capital
Securities properly tendered in the Exchange Offer by persons that
certify in a Letter of Transmittal that they are not a broker-dealer,
they are not participating in a distribution and they are not an
affiliate of the Company, the name of each Holder of such definitive
certificated Capital Securities, and the name and address to which
definitive certificated Capital Securities for Exchange Capital
Securities shall be registered and sent for each such Holder.
The Property Trustee, upon receipt of such Officers' Certificate with
respect to the preceding paragraph and to the effect that the Exchange
Capital Securities have been registered under the Securities Act and
the Trust Agreement has been qualified under the Trust Indenture Act
and with respect to the matters set forth in the Registration Rights
Agreement, shall authenticate (A) a Global Capital Security
representing the Exchange Capital Securities in aggregate Liquidation
Amount equal to the aggregate Liquidation Amount of the Capital
Securities so exchanged represented by a Global Capital Security
indicated in such Officers' Certificate and (B) definitive Capital
Securities representing the Exchange Capital Securities registered in
the names of, and in the Liquidation Amounts indicated in such
Officers' Certificate.
If, upon consummation of the Exchange Offer, less than all the then
outstanding Capital Securities shall have properly tendered and not
withdrawn, the Property Trustee shall make an endorsement on the Global
Capital Security representing such untendered Capital Securities
indicating the reduction in the number and aggregate Liquidation Amount
represented thereby as a result of the Exchange Offer.
(e) All Trust Securities shall be dated their date of authentication.
SECTION 5.6. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrators such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrators, or any one of them, on behalf
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of the Issuer Trust shall execute and make available for delivery, and the
Property Trustee shall authenticate, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Trust Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
The provisions of this Section 5.6 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Trust Securities Certificates.
SECTION 5.7. PERSONS DEEMED HOLDERS.
The Issuer Trustees, the Administrators or the Securities Registrar
shall treat the Person in whose name any Trust Securities are issued as the
owner of such Trust Securities for the purpose of receiving Distributions and
for all other purposes whatsoever (subject to the record date provisions
hereof), and none of the Issuer Trustees, the Administrators nor the Securities
Registrar shall be bound by any notice to the contrary.
SECTION 5.8. ACCESS TO LIST OF HOLDERS' NAMES AND ADDRESSES.
At any time when the Property Trustee is not also acting as the
Securities Registrar, the Depositor shall furnish or cause to be furnished to
the Property Trustee, semiannually not more than 15 days after December 31 and
June 30, of each year beginning with December 31, 1998, and at such other times
as the Property Trustee may request in writing within 30 days after receipt by
the Depositor of any such request, a list, in such form as the Property Trustee
may reasonably require containing all information in the possession or control
of the Depositor, or any Paying Agent or any registrar of the Trust Securities
other than the Property Trustee, as to the names and addresses of the Holders
obtained (in the case of each list other than the first list) since the date as
of which the next previous list was furnished. Any such list may be dated as of
a date not more than fifteen days prior to the time such information is
furnished or caused to be furnished, and need not include information received
after such date. The rights of Holders to communicate with other Holders with
respect to their rights under this Trust Agreement or under the Trust
Securities, and the corresponding obligations and rights of the Property
Trustee, shall be as provided in the Trust Indenture Act. Each Holder and each
Owner shall be deemed to have agreed not to hold the Depositor, the Property
Trustee, or the Administrators accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.
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SECTION 5.9. MAINTENANCE OF OFFICE OR AGENCY.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Capital Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served. The Property Trustee initially designates its
Corporate Trust Office at 450 West 33rd Street, 15th Floor, New York, New York
10001, Attention: Corporate Trustee Administration Department, as its corporate
trust office for such purposes. The Property Trustee shall give prompt written
notice to the Depositor, the Administrators and to the Holders of any change in
the location of the Securities Register or any such office or agency.
SECTION 5.10. APPOINTMENT OF PAYING AGENT.
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 Administrators. 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 Property Trustee may revoke such power and
remove any Paying Agent in its sole discretion. The Paying Agent shall initially
be the Property Trustee. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrators, and
the Property Trustee. In the event that the Property Trustee shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Property Trustee shall appoint a successor (which shall be a
bank or trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional Paying Agent
appointed by the Property Trustee shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Issuer Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the 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 removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply
to the Bank also in its role as Paying Agent, for so long as the Bank shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Trust Agreement to the Paying Agent
shall include any co-paying agent chosen by the Property Trustee unless the
context requires otherwise.
SECTION 5.11. OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR.
At the Closing Time, the Depositor shall acquire and 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 entity or any conveyance, transfer or lease
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by the Depositor of its properties and assets substantially as an entirety to
any Person, pursuant to Section 8.1 of the Indenture, or (ii) to 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 attempted transfer of the Common Securities, other than as
set forth in the immediately preceding sentence, shall be void. The
Administrators shall cause each Common Securities Certificate issued to the
Depositor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
SECTION 5.12. NOTICES TO CLEARING AGENCY.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Capital Securities are
represented by a Global Capital Securities Certificate, the Administrators and
the Issuer Trustees shall give all such notices and communications specified
herein to be given to the Clearing Agency, and shall have no obligations to the
Owners.
SECTION 5.13. RIGHTS OF HOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial ownership interest in the assets of the Issuer 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 Issuer Trust except as described
below. The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Holders against payment of the purchase price therefor, as provided herein, will
be fully paid and nonassessable by the Issuer Trust. Except as otherwise
provided in Section 4.8, 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.
(b) For so long as any Capital Securities remain Outstanding, if, upon
a Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Junior Subordinated
Debentures fail to declare the principal of all of the Junior Subordinated
Debentures to be immediately due and payable, the Holders of at least 25% in
Liquidation Amount of the Capital Securities then Outstanding shall have such
right to make such declaration by a notice in writing to the Property Trustee,
the Depositor and the Debenture Trustee.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated Debentures has been made and before a judgment or decree
for payment of the money due has been obtained by the Debenture Trustee as
provided in the Indenture, the Holders of a Majority in Liquidation Amount of
the Capital Securities, by written notice to the Property
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Trustee, the Depositor and the Debenture Trustee, may rescind and annul such
declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(A) all overdue installments of interest on all of the
Junior Subordinated Debentures,
(B) any accrued Additional Interest on all of the Junior
Subordinated Debentures,
(C) the principal of (and premium, if any, on) any Junior
Subordinated Debentures which have become due otherwise than by
such declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Junior Subordinated
Debentures, and
(D) all sums paid or advanced by the Debenture Trustee
under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Debenture Events of Default other than the non-payment
of the principal of the Junior Subordinated Debentures which has become
due solely by such acceleration, have been cured or waived as provided
in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Junior
Subordinated Debentures. No such rescission shall affect any subsequent default
or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Global Capital Securities, a
record date shall be established for determining Holders of Outstanding Capital
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 which is 90 days after such record date, such notice of
declaration of acceleration, or
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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 which 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 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Capital Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.9 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Junior Subordinated Debentures having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Capital Securities of such Holder (a "DIRECT ACTION"). Except as set forth in
Sections 5.13(b) and 5.13 (c), the Holders of Capital Securities shall have no
right to exercise directly any right or remedy available to the holders of, or
in respect of, the Junior Subordinated Debentures.
The holders of a Majority in Liquidation Amount of the Capital Securities
at the time Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred on the Property Trustee with
respect to the Capital Securities; PROVIDED, HOWEVER, that, 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 directed may not
lawfully be taken, or if the Property Trustee in good faith shall determine that
the proceedings so directed would be illegal or involve it in personal liability
or be unduly prejudicial to the rights of Holders of Capital Securities not
parties 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 by such Holders.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. LIMITATIONS ON HOLDER'S VOTING RIGHTS.
(a) Except as provided in this Trust Agreement and in the Indenture and
as otherwise required by law, no Holder of Capital Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Issuer Trust or the obligations of the parties hereto, nor
shall anything herein set forth or contained in the terms of the Trust
Securities Certificates be construed so as to constitute the Holders from time
to time as members of an association.
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(b) So long as any Junior Subordinated Debentures are held by the
Property Trustee on behalf of the Issuer Trust, the Property Trustee shall not
(i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust or power
conferred on the Property Trustee with respect to such Junior Subordinated
Debentures, (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 Junior Subordinated Debentures shall be due and payable
or (iv) consent to any amendment, modification or termination of the Indenture
or the Junior Subordinated Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Capital Securities, PROVIDED, HOWEVER,
that where a consent under the Indenture would require the consent of each
Holder of Junior Subordinated Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior written consent of each
Holder of Capital Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of Capital
Securities, except by a subsequent vote of the Holders of Capital Securities.
Subject to Section 8.2, the Property Trustee shall notify all Holders of the
Capital Securities of any notice of default received with respect to the Junior
Subordinated Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Capital 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 will not
cause the Issuer Trust to be taxable other than as a grantor trust for United
States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or
the Issuer Trust otherwise proposes to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences or
special rights of the Capital Securities, whether by way of amendment to the
Trust Agreement or otherwise, or (ii) the dissolution, winding-up or termination
of the Issuer Trust, other than pursuant to the terms of this Trust Agreement,
then the Holders of Outstanding Trust 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 Capital Securities, except as otherwise provided in
Section 10.2(c). Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such amendment,
it would cause the Issuer Trust to be taxable other than as a grantor trust for
United States Federal income tax purposes.
SECTION 6.2. NOTICE OF MEETINGS.
Notice of all meetings of the Holders, 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 record, at his registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
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SECTION 6.3. MEETINGS OF HOLDERS.
No annual meeting of Holders is required to be held. The Property
Trustee, however, shall call a meeting of Holders to vote on any matter upon the
written request of the Holders of record of 25% of the aggregate Liquidation
Amount of the Capital Securities and the Administrators or the Property Trustee
may, at any time in their discretion, call a meeting of Holders of Capital
Securities to vote on any matters as to which Holders are entitled to vote.
Holders of at least a Majority in Liquidation Amount of the Capital
Securities, present in person or represented by proxy, shall constitute a quorum
at any meeting of Holders of the Capital Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders
of record present, in person or by proxy, holding Capital Securities
representing at least a Majority in Liquidation Amount of the Capital Securities
held by the Holders present, either in person or by proxy, at such meeting shall
constitute the action of the Holders of Capital Securities, unless this Trust
Agreement requires a greater number of affirmative votes.
SECTION 6.4. 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 6.5. 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 Property Trustee, or with such other officer
or agent of the Issuer Trust as the Property Trustee 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 6.6. HOLDER ACTION BY WRITTEN CONSENT.
Any action which may be taken by Holders at a meeting may be taken
without a meeting if Holders holding at least a Majority in Liquidation Amount
of all Trust Securities
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entitled to vote in respect of such action (or such larger proportion thereof as
shall be required by any other provision of this Trust Agreement) shall consent
to the action in writing.
SECTION 6.7. RECORD DATE FOR VOTING AND OTHER PURPOSES.
For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators or Property Trustee 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.
SECTION 6.8. ACTS OF HOLDERS.
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 the Property 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 (subject to Section
8.1) conclusive in favor of the Issuer Trustees, if made in the manner provided
in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Issuer Trustee or Administrator receiving the same deems
sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
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 Issuer
Trustees, the Administrators or the Issuer Trust in reliance thereon, whether or
not notation of such action is made upon such Trust Security.
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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.
If any dispute shall arise among the Holders, the Administrators or the
Issuer 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 Issuer Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect to such
matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Issuer Trust, any Issuer Trustee, any Administrator or
any person or entity.
SECTION 6.9. INSPECTION OF RECORDS.
Upon reasonable notice to the Administrators and the Property Trustee,
the records of the Issuer Trust shall be open to inspection by Holders during
normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
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 and the Holders that:
(a) The Property Trustee is a banking corporation with corporate trust
powers, duly organized, validly existing and in good standing under the laws of
New York, with corporate trust power and authority to execute and deliver, and
to carry out and perform its obligations under the terms of this Trust
Agreement.
(b) The execution, delivery and performance by the Property Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Property Trustee; and this Trust Agreement has been duly
executed and delivered by the Property Trustee, and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium,
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insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of this Trust Agreement by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
(d) At the Closing Time, the Property Trustee has not knowingly created
any liens or encumbrances on the Trust Securities.
(e) No consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority governing the banking
or trust powers of the Property Trustee is required for the execution, delivery
or performance by the Property Trustee, of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with corporate trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement.
(g) The execution, delivery and performance by the Delaware Trustee of
this Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee; and this Trust Agreement has been duly
executed and delivered by the Delaware Trustee, and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' right
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(h) The execution, delivery and performance of this Trust Agreement by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with or
notice to any Delaware or federal banking authority governing the trust powers
of the Delaware Trustee is required for the execution, delivery or performance
by the Delaware Trustee, of this Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal place of
business in the State of Delaware.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
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(a) the Trust Securities Certificates issued at the Closing Time on
behalf of the Issuer Trust have been duly authorized and will have been duly and
validly executed, and, subject to payment therefor, issued and delivered by the
Issuer Trust 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; and
(b) there are no taxes, fees or other governmental charges payable by
the Issuer Trust (or the Administrators or Issuer Trustees on behalf of the
Issuer Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and performance
by either the Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Issuer Trustees and the
Administrators shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, by the Trust Indenture Act. Notwithstanding the foregoing,
no provision of this Trust Agreement shall require the Issuer Trustees or the
Administrators to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Issuer
Trustees or the Administrators shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release an
Administrator or an Issuer Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct. To the extent
that, at law or in equity, an Issuer Trustee or Administrator has duties and
liabilities relating to the Issuer Trust or to the Holders, such Issuer Trustee
or Administrator shall not be liable to the Issuer Trust or to any Holder for
such Issuer Trustee's or Administrator's good faith reliance on the provisions
of this Trust Agreement. The provisions of this Trust Agreement, to the extent
that they restrict the duties and liabilities of the Issuer Trustees and
Administrators otherwise existing at law or in equity, are agreed by the
Depositor and the Holders to replace such other duties and liabilities of the
Issuer Trustees and Administrators.
(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
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revenue and proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that neither the Issuer Trustees nor
the Administrators are personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Issuer
Trustees expressly set forth elsewhere in this Trust Agreement or, in the case
of the Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Trust Agreement (including pursuant to Section 10.10), and no implied
covenants shall be read into this Trust Agreement against the Property Trustee.
If an Event of Default has occurred (that has not been cured or waived pursuant
to this Trust Agreement or Section 5.13 of the Indenture), the Property Trustee
shall exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Trust Agreement (including pursuant to Section 10.10), and the
Property Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in
this Trust Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Property Trustee and conforming to the requirements of this
Trust Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
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(iii) 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 Capital 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;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debentures and the Payment Account shall be to deal with
such property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this
Trust Agreement and the Trust Indenture Act;
(v) 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;
(vi) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrators 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 Issuer
Trustee, the Administrators or the Depositor; and
(vii) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Property Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Trust Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(e) The Administrators shall not be responsible for monitoring the
compliance by the Issuer Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall either Administrator be liable for the
default or misconduct of any other Administrator, the Issuer Trustees or the
Depositor.
SECTION 8.2. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in Liquidation Amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past Event of Default and its consequences, except a default described in
clause (b) or (c) of the definition of "Event of Default" contained in Section
1.1, a default in respect of a covenant or provision which under this Trust
Agreement cannot be modified or amended without the consent of the Holder of
each
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Outstanding Capital Security or a Debenture Event of Default that the Holders of
a Majority in Liquidation Amount of the Capital Securities would not be entitled
to waive pursuant to Section 5.13(b). 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 default or Event of Default
or impair any right consequent therefrom.
SECTION 8.3. CERTAIN NOTICES.
(a) Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee assigned
to its Corporate Trust Office, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Holders and the Administrators, unless such Event of Default
shall have been cured or waived.
(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 Junior
Subordinated Debentures pursuant to the Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Holders and the Administrators, unless such exercise shall
have been revoked.
SECTION 8.4. CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
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) any direction or act of the Depositor contemplated by this Trust
Agreement shall be sufficiently evidenced by an Officers' Certificate;
(c) 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, refiling or reregistration thereof;
(d) the Property Trustee may consult with counsel of its own choosing
(which counsel may be counsel to the Property Trustee, the Depositor or any of
its Affiliates, 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
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have the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(e) 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 security or indemnity
satisfactory to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction; PROVIDED that,
nothing contained in this Section 8.4(e) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Trust Agreement in
accordance with the standard specified in Section 8.1(c);
(f) 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;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, PROVIDED that the Property Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(h) 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 the
terms of the Trust Securities in respect of such remedy, right or action), (ii)
may refrain from enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be fully protected in
acting in accordance with such instructions;
(i) 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;
(j) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrators; and
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(k) the Property Trustee shall not be charged with knowledge of an
Event of Default unless an officer of the Property Trustee assigned to its
Corporate Trust Office obtains actual knowledge of such event or the Property
Trustee receives written notice of such event from the Depositor, any
Administrator or Holders holding a Majority in Liquidation Amount of the Capital
Securities.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee or Administrator to perform any act or acts
or exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to any Issuer Trustee or
Administrator shall be construed to be a duty.
SECTION 8.5. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees
and the Administrators do not assume any responsibility for their correctness.
The Issuer Trustees and the Administrators shall not be accountable for the use
or application by the Depositor of the proceeds of the Junior Subordinated
Debentures.
SECTION 8.6. MAY HOLD SECURITIES.
Except as provided in the definition of the term "OUTSTANDING" in
Article I, the Administrators, any Issuer Trustee or any other agent of any
Issuer Trustee or the Issuer Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.9 and
8.14, may otherwise deal with the Issuer Trust with the same rights it would
have if it were not an Administrator, Issuer Trustee or such other agent.
SECTION 8.7. COMPENSATION; INDEMNITY; FEES.
The Depositor, as borrower, agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Issuer Trustees upon request for all reasonable
expenses, disbursements and advances incurred or made by the Issuer Trustees in
accordance with any provision of this Trust Agreement (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to their negligence
or willful misconduct; and
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(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Issuer Trustee, (ii) each Administrator, (iii) any
Affiliate of any Issuer Trustee, (iv) any officer, director, shareholder,
employee, representative or agent of any Issuer Trustee, and (v) any employee or
agent of the Issuer Trust, (referred to herein as an "INDEMNIFIED PERSON") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
The provisions of this Section 8.7 shall survive the termination of
this Trust Agreement.
No Issuer Trustee may claim any lien or charge on any Trust Property as
a result of any amount due pursuant to this Section 8.7.
The Depositor, any Administrator and any Issuer Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall
have no rights by virtue of this Trust Agreement in and to such independent
ventures or the income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust, shall not be
deemed wrongful or improper. Neither the Depositor, any Administrator, nor any
Issuer Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a character that,
if presented to the Issuer Trust, could be taken by the Issuer Trust, and the
Depositor, any Administrator or any Issuer Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment or other opportunity. Any Issuer
Trustee may engage or be interested in any financial or other transaction with
the Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Depositor or its Affiliates.
SECTION 8.8. CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES AND ADMINISTRATORS.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VIII. At the time of appointment,
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the Property Trustee must have securities rated in one of the three highest
rating categories by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators hereunder.
Each Administrator 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. An employee, officer or Affiliate of the Depositor may serve
as an Administrator.
(c) There shall at all times be a Delaware Trustee. The Delaware
Trustee shall either be (i) a natural person who is at least 21 years of age and
a resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.9. 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.
(b) The Guarantee and the Indenture shall be deemed to be sufficiently
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 8.10. 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 Property Trustee shall have power to
appoint, and upon the written request of the Property Trustee, the Depositor and
the Administrators shall for such purpose join with the Property Trustee in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor or
the Administrators do not join in such appointment within 15 days after the
receipt by them of a request to do so, or in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee alone shall have the power
to make such appointment. Any co-trustee or separate trustee appointed pursuant
to this Section shall either be (i) a natural person who is at least 21 years of
age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
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Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor, provided, that, if a Debenture 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 Certificates shall be authenticated by the
Property Trustee, and the Trust Securities Certificates shall be authenticated
and delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property held by,
or required to be deposited or pledged with, the Property Trustees 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 and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture 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, provided, that, if a Debenture Event of Default shall
have occurred and be continuing the Property Trustee may execute any such
instruments or agreements on behalf of the Depositor as its agent and
attorney-in-fact therefor. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section
8.10.
(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.
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(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.11. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.12.
Subject to the immediately preceding paragraph, an Issuer Trustee may
resign at any time by giving written notice thereof to the Holders and the
Depositor. If the instrument of acceptance by the successor Issuer Trustee
required by Section 8.12 shall not have been delivered to the Relevant Trustee
within 60 days after the giving of such notice of resignation, the Relevant
Trustee may petition, at the expense of the Issuer Trust, any competent court of
the State of Delaware for the appointment of a successor Issuer Trustee.
The Property Trustee or the Delaware Trustee may be removed at any time
by Act of the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Issuer Trust) (i) for cause (including upon the
occurrence of an Event of Default described in subparagraph (e) of the
definition thereof with respect to the Relevant Trustee), or (ii) if a Debenture
Event of Default shall have occurred and be continuing at any time.
If a Relevant Trustee shall resign, be removed or become incapable of
acting as Issuer Trustee, or if any vacancy shall occur in the office of any
Issuer Trustee for any cause, the Depositor shall appoint a successor Relevant
Trustee. Within one year after the appointment by the Depositor of a successor
Relevant Trustee, the Holders of the Capital Securities, by Act of the Holders
of record of not less than 25% in aggregate Liquidation Amount of the Capital
Securities then Outstanding delivered to such Relevant Trustee, may appoint a
successor Relevant Trustee, and such successor Relevant Trustee shall comply
with the applicable requirements of Section 8.12 and the successor Relevant
Trustee appointed by the Depositor shall be superseded. If no successor Trustee
shall have been so appointed by the Depositor or the Holders of the Capital
Securities and accepted appointment in the manner required by Section 8.12, any
Holder, on behalf of himself and all others similarly situated, or any other
Issuer Trustee, may petition any court in the State of Delaware for the
appointment of a successor Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Relevant Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 10.8 and shall give notice to the
Depositor and to the Administrators. Each notice shall include the name of the
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
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Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of the remaining Administrators if there are
at least two of them or (b) otherwise by the Depositor (with the successor in
each case being a Person who satisfies the eligibility requirement for Delaware
Trustee, set forth in Section 8.8).
SECTION 8.12. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each such successor Relevant Trustee with
respect to the Trust Securities shall execute, acknowledge and deliver an
amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Issuer Trust, and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Issuer Trust or any
successor Relevant Trustee such retiring Relevant Trustee shall, upon payment of
its charges, duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Issuer Trust
and the Depositor shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to above.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be eligible
under this Article VIII.
SECTION 8.13. 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 Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, PROVIDED that such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
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SECTION 8.14. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR
OR ISSUER TRUST.
If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obligor upon the Trust Securities), the Property Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Depositor (or any such other obligor) only if
this Trust Agreement is subject to the Trust Indenture Act.
SECTION 8.15. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor, 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 Issuer 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:
(a) 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
(b) to collect and receive any monies 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.
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, 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 8.16. REPORTS BY PROPERTY TRUSTEE.
(a) Not later than July 15 of each year commencing with July 15, 1999,
the Property Trustee shall transmit to all Holders in accordance with Section
10.8, and to the Depositor, a brief report dated as of the immediately preceding
May 15 concerning the Property
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Trustee and its actions under this Trust Agreement if and as may be required
pursuant to Section 313(a) of the Trust Indenture Act.
(b) In addition 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 the Depositor.
SECTION 8.17. REPORTS TO THE PROPERTY TRUSTEE.
The Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. The Depositor and the Administrators shall annually file with the
Property Trustee a certificate specifying whether such Person is in compliance
with all the terms and covenants applicable to such Person hereunder, such
compliance certificate to be delivered annually within 120 days after the end of
each fiscal year of the Depositor ending after the date hereof.
SECTION 8.18. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Depositor and the Administrators on behalf of the Issuer
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.19. NUMBER OF ISSUER TRUSTEES.
(a) The number of Issuer Trustees shall be two. The Property Trustee
and the Delaware Trustee may be the same Person, in which case, the number of
Issuer Trustees may be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul, dissolve or terminate the Issuer Trust.
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SECTION 8.20. DELEGATION OF POWER.
(a) Any Administrator may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a) or making any governmental filing; and
(b) The Administrators shall have power to delegate from time to time
to such of their number the doing of such things and the execution of such
instruments either in the name of the Issuer Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement.
SECTION 8.21. APPOINTMENT OF ADMINISTRATORS.
(a) The Administrators shall be appointed by the Holders of a Majority
in Liquidation Amount of the Common Securities and may be removed by the Holders
of a Majority in Liquidation Amount of the Common Securities or may resign at
any time. Upon any resignation or removal, the Depositor shall appoint a
successor Administrator. Each Administrator shall execute this Trust Agreement
thereby agreeing to comply with, and be legally bound by, all of the terms,
conditions and provisions of this Trust Agreement. If at any time there is no
Administrator, the Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of competent
jurisdiction for the appointment of one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall occur,
until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 8.21, the Administrators in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this Trust
Agreement, in the event any Administrator who is a natural person dies or
becomes, in the opinion of the Holders of a Majority in Liquidation Amount of
the Common Securities, incompetent, or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such vacancy, and by
the Depositor, if there were not two such Administrators immediately prior to
such vacancy (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrators set forth in Section 8.8).
Except as otherwise provided in this Trust Agreement, or by applicable
law, any one Administrator may execute any document or otherwise take any action
which the Administrators are authorized to take under this Trust Agreement.
SECTION 8.22. DELAWARE TRUSTEE.
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(a) Notwithstanding any other provision of this Trust Agreement other
than Section 8.8, 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 Administrators or the Property Trustee described in this
Trust Agreement. Except as set forth in Section 8.8, the Delaware Trustee shall
be a Trustee for the sole and limited purpose of fulfilling the requirements of
ss. 3807 of the Business Trust Act.
(b) It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Delaware Trustee hereunder on behalf of the Issuer
Trust, (i) any agreements or instruments executed or 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
Issuer 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 Issuer
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 Issuer Trust or be liable for the breach or failure of any
obligation, representation, warranty, or covenant made or undertaken by the
Issuer Trust under this Trust Agreement except if such breach or failure is due
to any gross negligence or willful misconduct of the Delaware Trustee.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. DISSOLUTION UPON EXPIRATION DATE.
Unless earlier dissolved pursuant to an Early Termination Event, the
Issuer Trust shall automatically dissolve on July 15, 2029 (the "EXPIRATION
DATE"), and thereafter the Trust Property shall be distributed in accordance
with Section 9.4.
SECTION 9.2. EARLY DISSOLUTION.
The first to occur of any of the following events is an "EARLY
TERMINATION EVENT" and shall cause dissolution of the Issuer Trust.
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect to
the Depositor or all or substantially all of its property, or a court or other
governmental agency shall enter a decree or order relating to the Depositor for
relief in a voluntary or involuntary case under Chapter 7 or Chapter 11 of the
United States Bankruptcy Code or any other similar state or federal law now or
hereafter in effect and such decree or order shall remain unstayed and
undischarged for a period of 60 days, unless the Depositor shall transfer the
Common Securities as provided by Section 5.11, in which case this provision
shall refer instead to any such successor Holder of the Common Securities;
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(b) the written direction to the Property Trustee from the Holder of
the Common Securities at any time to dissolve the Issuer Trust and to distribute
the Junior Subordinated Debentures to Holders in exchange for the Capital
Securities (which direction, subject to Section 9.4(a), is optional and wholly
within the discretion of the Holders of the Common Securities);
(c) the repayment of all of the Capital Securities in connection with
the redemption of all the Junior Subordinated Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by a
court of competent jurisdiction.
SECTION 9.3. TERMINATION.
As soon as is practicable after the occurrence of an event referred to
in Section 9.1 or 9.2, and upon the completion of the winding-up and liquidation
of the Issuer Trust, the Administrators and the Issuer Trustees (each of whom is
hereby authorized to take such action) shall file a certificate of cancellation
with the Secretary of State of the State of Delaware terminating the Issuer
Trust and, upon such filing, the respective obligations and responsibilities of
the Issuer Trustees, the Administrators and the Issuer Trust created and
continued hereby shall terminate, except as otherwise required by law or this
Trust Agreement.
SECTION 9.4. LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 9.2 occurs or upon the Expiration Date, the Issuer Trust shall be
wound-up and liquidated by the Property Trustee as expeditiously as the Property
Trustee determines to be possible by distributing, after paying or making
reasonable provision to pay all claims and obligations of the Issuer Trust in
accordance with Section 3808(e) of the Delaware Business Trust Act, to each
Holder a Like Amount of Junior Subordinated Debentures, subject to Section
9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 15 nor more than 45
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Junior
Subordinated
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Debentures, or if Section 9.4(d) applies receive a Liquidation
Distribution, as the Administrators or the Property Trustee shall deem
appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Issuer Trust and distribution of the Junior Subordinated
Debentures to Holders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 30 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Junior Subordinated Debentures in
exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency for the Capital Securities or its nominee,
as the registered holder of the Global Capital Securities Certificate, shall
receive a registered global certificate or certificates representing the Junior
Subordinated Debentures to be delivered upon such distribution with respect to
Capital Securities held by the Clearing Agency or its nominee, and, (iii) any
Trust Securities Certificates not held by the Clearing Agency for the Capital
Securities or its nominee as specified in clause (ii) above will be deemed to
represent Junior Subordinated Debentures having a principal amount equal to the
stated Liquidation Amount of the Trust Securities represented thereby and
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities until such certificates are
presented to the Securities Registrar for transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Junior Subordinated Debentures is
not practical, or if any Early Termination Event specified in clause (c) of
Section 9.2 occurs, the Issuer Trust shall be dissolved, and the Trust Property
shall be liquidated, by the Property Trustee in such manner as the Property
Trustee determines. In such event, on the date of the dissolution of the Issuer
Trust, Holders will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after paying or making reasonable
provision to pay all claims and obligations of the Issuer Trust in accordance
with Section 3808(e) of the Delaware Business Trust Act, an amount equal to the
aggregate of 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 dissolution, the Liquidation Distribution can
be paid only in part because the Issuer 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 Issuer Trust on the Trust
Securities shall be paid on a PRO RATA basis (based upon Liquidation Amounts).
The Holders of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, PRO RATA (determined as aforesaid) with
Holders of Capital Securities, except that, if a Debenture Event of Default has
occurred and is continuing, the Capital Securities shall have a priority over
the Common Securities as provided in Section 4.3.
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SECTION 9.5. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS
OF THE ISSUER TRUST.
The Issuer 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 entity, except pursuant to this Section
9.5. At the request of the Holders of the Common Securities, and with the
consent of the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, but without the consent of the Issuer Trustees, the Issuer
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, HOWEVER,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Issuer Trust with respect to the Capital Securities or (b)
substitutes for the Capital Securities other securities having substantially the
same terms as the Capital Securities (the "SUCCESSOR CAPITAL SECURITIES") so
long as the Successor Capital Securities have the same priority as the Capital
Securities with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is appointed to hold the Junior
Subordinated Debentures, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital Securities
(including any Successor Capital Securities) to be downgraded by any nationally
recognized statistical rating organization, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Capital
Securities (including any Successor Capital Securities) in any material respect,
(v) such successor entity has a purpose substantially identical to that of the
Issuer Trust, (vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel from independent counsel experienced in such matters to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights preferences
and privileges of the Holders of the Capital Securities (including any Successor
Capital Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Issuer Trust nor such successor entity will be required to register as an
"investment company" under the Investment Company Act and (vii) the Depositor or
any permitted transferee to whom it has transferred the Common Securities
hereunder owns all of the securities of such successor entity that are
equivalent to the Common Securities and guarantees the obligations of such
successor under the Successor Capital Securities at least to the extent provided
by the Guarantee. Notwithstanding the foregoing, the Issuer Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the Capital
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to, any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Issuer Trust or the
successor entity to be taxable other than as a grantor trust for United States
Federal income tax purposes. Any merger agreement or similar agreement shall be
executed by the Administrators on behalf of the Trust.
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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 or incapacity of any
person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such person or any 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. AMENDMENT.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee and the Holders of a Majority in Liquidation Amount of the
Common Securities, without the consent of any Holder of the Capital Securities
(i) to cure any ambiguity, correct or supplement any provision herein which may
be inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement,
PROVIDED, HOWEVER, that such amendment shall not adversely affect in any
material respect the interests of any Holder, (ii) to modify, eliminate or add
to any provisions of this Trust Agreement to such extent as shall be necessary
to ensure that the Issuer Trust will not be taxable other than as a grantor
trust for United States Federal income tax purposes at any time that any Trust
Securities are Outstanding or to ensure that the Issuer Trust will not be
required to register as an investment company under the Investment Company Act
or (iii) in accordance with the requirements of Section 8.12.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Property Trustee and the Holders of a
Majority in Liquidation Amount of the Common Securities with (i) the consent of
Holders of at least a Majority in Liquidation Amount of the Capital Securities
and (ii) receipt by the Issuer Trustees of an Opinion of Counsel to the effect
that such amendment or the exercise of any power granted to the Issuer Trustees
in accordance with such amendment will not affect the Issuer Trust's being
taxable as a grantor trust for United States Federal income tax purposes or
cause the Issuer Trust to lose its exemption from status as an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the enforcement of any
such payment on or after such date.
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(d) Notwithstanding any other provisions of this Trust Agreement, no
Issuer Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Issuer Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment Company
Act or be taxable other than as a grantor trust for United States Federal income
tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrators or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement or otherwise. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
(h) The Administrators shall give notice to the Holders of each
amendment to this Trust Agreement, provided, however, that any failure by the
Administrators to deliver, or any defect in, such notice, shall not affect the
validity or effectiveness of any such amendment.
SECTION 10.3. SEPARABILITY.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.4. GOVERNING LAW.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATORS SHALL GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE
ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY PROVISION OF THE
LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS OTHER
THAN THE DELAWARE
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BUSINESS TRUST ACT THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE
TERMS HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF
TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE
REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY,
(D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL,
(F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR
CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING,
STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE
ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS
ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR
LIABILITIES OR AUTHORITIES AND POWERS OF THE ISSUER TRUSTEES OR THE
ADMINISTRATOR AS SET FORTH OR REFERENCED IN THIS TRUST AGREEMENT. SECTION 3540
OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE ISSUER TRUST.
NOTWITHSTANDING THE FOREGOING, 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.
SECTION 10.5. PAYMENTS DUE ON NON-BUSINESS DAY.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.2(d)), with the same force and effect as though
made on the date fixed for such payment, and no Distributions shall accumulate
on such unpaid amount for the period after such date.
SECTION 10.6. SUCCESSORS.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Issuer Trust, the Administrators
and any Issuer Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.7. HEADINGS.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
-66-
SECTION 10.8. REPORTS, NOTICES AND DEMANDS.
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, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Capital 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 Common
Securities or the Depositor, to United Community Banks, Inc., 59 Highway 515,
Blairsville, Georgia 30512, Attention: Christopher J. Bledsoe, facsimile no.:
(706)745-8619 or to such other address as may be specified in a written notice
by the Depositor 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 hand delivery, mailing or transmission.
Such notice, demand or other communication to or upon the Depositor shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Depositor.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Issuer Trust, the Property Trustee, the Delaware Trustee or the
Administrators shall be given in writing addressed (until another address is
published by the Issuer Trust) as follows: (a) with respect to the Property
Trustee to The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New York,
New York, 10001, Attention: Corporate Trustee Administration Department; (b)
with respect to the Delaware Trustee to Chase Manhattan Bank Delaware, 1201
Market Street, Wilmington, Delaware 19801, Attention: Corporate Trustee
Administration Department; (c) with respect to the Administrators, to them at
the address above for notices to the Depositor, marked "Attention: Office of the
Chief Financial Officer" and (d) with respect to the Issuer Trust to United
Community Capital Trust C/O United Community Banks, Inc., 59 Highway 515,
Blairsville, Georgia 30512, attention: Christopher J. Bledsoe. Such notice,
demand or other communication to or upon the Issuer Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Issuer Trust, the Property Trustee, or such
Administrator.
SECTION 10.9 AGREEMENT NOT TO PETITION.
Each of the Issuer Trustees, the Administrators and the Depositor agree
for the benefit of the Holders that, until at least one year and one day after
the Issuer Trust has been terminated in accordance with Article IX, they shall
not file, or join in the filing of, a petition against the Issuer Trust under
any bankruptcy, insolvency, reorganization or other similar law (including,
without limitation, the United States Bankruptcy Code) (collectively,
"BANKRUPTCY LAWS") or otherwise join in the commencement of any proceeding
against the Issuer Trust under any Bankruptcy Law. In the event the Depositor
takes action in violation of this Section 10.9, the Property Trustee agrees, for
the benefit of 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 Issuer 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 Issuer Trustee or the Issuer Trust
may assert. If any Issuer Trustee or Administrator takes action in violation of
this Section 10.9, the Depositor agrees, for the benefit of the 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 such Person against
the Issuer Trust or the commencement of such action and raise the
-67-
defense that such Person 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 Depositor may assert. The provisions of this Section 10.9 shall
survive the termination of this Trust Agreement.
SECTION 10.10. TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE
ACT.
(a) TRUST INDENTURE ACT; APPLICATION. (i) This Trust Agreement is
intended to be in conformity with the provisions of the Trust Indenture Act that
would be required to be part of this Trust Agreement were this Trust Agreement
to be qualified under the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions; (ii) if and to the extent that any
provision of this Trust Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control; (iii) if any provision of this Trust Agreement
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Trust Agreement as so modified or excluded, as the case may be, (iv) for
purposes of this Trust Agreement, the Property Trustee, to the extent permitted
by applicable law and/or the rules and regulations of the Commission, shall be
the only Issuer Trustee which is a trustee for the purposes of the Trust
Indenture Act; and (v) the application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Capital Securities and the Common
Securities as equity securities representing undivided beneficial interests in
the assets of the Issuer Trust.
(b) DISCLOSURE INFORMATION. The disclosure of information as to the
names and addresses of the Holders of Trust Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Property Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE
AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE
-68-
AND THE INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF
THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-69-
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed, all as of the day and year first
above written.
UNITED COMMUNITY BANKS, INC.,
as Depositor
By:/s/Jimmy C. Tallent
-----------------------------
Name: Jimmy C. Tallent
Title: President
THE CHASE MANHATTAN BANK,
as Property Trustee, and not in its
individual capacity
By:/s/William G. Keenan
-------------------------------
Name: William G. Keenan
Title: Trust Officer
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee, and not
in its individual capacity
By:/s/Denis Kelly
------------------------------
Name: Denis Kelly
Title: Trust Officer
Agreed to and Accepted by,
/s/Jimmy C. Tallent
- ----------------------
Name: Jimmy C. Tallent
Title: Administrator
/s/Christopher J. Bledsoe
- -------------------------
Name: Christopher J. Bledsoe
Title: Administrator
-70-
EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
EXHIBIT B
[INSERT FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-__
Certificate Evidencing Common Securities
of
United Community Capital Trust
8.125% Common Securities
(liquidation amount $1,000 per Common Security)
United Community Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
United Community Banks, Inc. (the "Holder") is the registered owner of
____________ (_____) common securities of the Issuer Trust representing
undivided beneficial interests in the assets of the Issuer Trust and designated
the 8.125% Common Securities (liquidation amount $1,000 per Common Security)
(the "Common Securities"). Except in accordance with Section 5.11 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 Issuer Trust, dated as of July 20, 1998, as the same may be amended from
time to time (the "Trust Agreement") among United Community Banks, Inc., as
Depositor, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank
Delaware, as Delaware Trustee, and the Holders of Trust Securities, including
the designation of the terms of the Common Securities as set forth therein. The
Issuer Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Issuer 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.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this _____ day of _______, 199__.
UNITED COMMUNITY CAPITAL TRUST
By:
-------------------------------
ADMINISTRATOR
Certificate of Authentication:
This is one of the Common Securities referred to in the within-mentioned Trust
Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
----------------------------------
Name:
Authorized Officer
EXHIBIT D
CAPITAL SECURITIES CERTIFICATE
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL CAPITAL
SECURITIES CERTIFICATE, INSERT -- This Capital Securities Certificate is a
Global Capital Securities Certificate 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 Capital Securities Certificate is exchangeable for
Capital 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 Capital Securities Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to United Community Capital Trust or its agent for
registration of transfer, exchange or payment, and any Capital Securities
Certificate issued is registered in the name of such nominee as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such 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, has an interest herein.]
[If the Capital Security is to be a Restricted Capital Security, {Insert}]
THE CAPITAL SECURITIES EVIDENCED HEREBY AND ANY JUNIOR SUBORDINATED
DEBENTURES ISSUABLE IN CONNECTION THEREWITH HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE
PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT IN A TRANSACTION THAT IS EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED
STATES. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS. THE HOLDER OF THIS CAPITAL SECURITY AGREES FOR THE
BENEFIT OF THE ISSUER THAT THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CAPITAL SECURITY
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. NO REPRESENTATION CAN BE
MADE AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALES OF
THE CAPITAL SECURITIES OR ANY JUNIOR SUBORDINATED DEBENTURES DISTRIBUTABLE TO
HOLDERS OF THE CAPITAL SECURITIES.
THE CAPITAL SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 (100 CAPITAL
SECURITIES). ANY SUCH TRANSFER OF CAPITAL SECURITIES IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH CAPITAL SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO
THE RECEIPT OF DISTRIBUTIONS ON SUCH CAPITAL SECURITIES, AND SUCH TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH CAPITAL SECURITIES.
[INITIAL]*
CERTIFICATE NUMBER AGGREGATE LIQUIDATION AMOUNT
P-__ ______________________
(CAPITAL SECURITIES)
CUSIP NO. ________________
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
UNITED COMMUNITY CAPITAL TRUST
8.125% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
United Community Capital Trust, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
________ (the "Holder") is the registered owner of [the aggregate Liquidation
Amount of Capital Securities of the Issuer Trust specified in Schedule I
hereto]* [____________ Dollars ($_______) aggregate Liquidation Amount of
capital securities of the Issuer Trust]** representing a preferred undivided
beneficial interest in the assets of the Issuer Trust and designated the United
Community Capital Trust 8.125% Capital Securities (liquidation amount $1,000 per
Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Issuer 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 5.5 of the Trust Agreement
(as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities are set
forth in, and this certificate and the Capital 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 Issuer Trust, dated as of July 20,
1998, as the same may be amended from time to time (the "Trust Agreement"),
among United Community Banks, Inc., as Depositor, The Chase Manhattan Bank, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, and the
Holders of Trust Securities, including the designation of the terms of the
Capital Securities as set forth therein. The Holder is entitled to the benefits
of the Guarantee Agreement entered into by United Community Banks, Inc., a
Georgia bank holding company, and The Chase Manhattan Bank, as Guarantee
Trustee, dated as of July 20, 1998 (the "Guarantee Agreement"), to the extent
provided therein. The Issuer Trust will furnish a copy of the Trust Agreement
and the Guarantee Agreement to the Holder without charge upon written request to
the Issuer Trust at its principal place of business or registered office.
- --------------------
* Insert in Global Capital Security Certificate
**Insert in Non-Global Capital Security Certificate
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust has
executed this certificate this _____ day of _______________, 199__.
UNITED COMMUNITY CAPITAL TRUST
By:
--------------------------------
ADMINISTRATOR
Certificate of Authentication
This is one of the Capital Securities referred to in the within-mentioned Trust
Agreement.
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
---------------------------
Name:
Authorized Officer
Schedule I*
The initial Liquidation Amount of Capital Securities evidenced by this Global
Capital Securities Certificate is $_______.
Changes in Liquidation Amount of Global Capital Securities Certificate
Date Liquidation Amount by Liquidation Amount of Notation Made
which Global Capital Global Capital by
Securities Certificate Securities Certificate
is Being Increased or After Increase or
Decreased Decrease
*Insert in Global Capital Security Certificate
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
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 Capital Securities Certificate on the books of the Issuer
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 Capital
Securities 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.
EXHIBIT E
[Form of Restricted Securities Certificate]
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 5.5(b)
of the Trust Agreement)
[--------------------------],
as Security Registrar
[address]
Re: 8.125% Capital Securities of United Community Capital Trust
(the "Issuer Trust") (the "Capital Securities")
-----------------------------------------------
Reference is made to the Amended and Restated Trust Agreement, dated as
of July 20, 1998 (the "Trust Agreement"), among United Community Banks, Inc., as
Depositor (the "Company"), The Chase Manhattan Bank, as Property Trustee and
Chase Manhattan Bank Delaware, as Delaware Trustee, and the Holders (as defined
therein) from time to time. Terms used herein and defined in the Trust Agreement
or in Regulation D, Rule 144A or Rule 144 under the U.S. Securities Act of 1933,
as amended, (the "Securities Act"), are used herein as so defined.
This certificate relates to $__________ aggregate Liquidation Amount of
Capital Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s):
--------------------------------------------------------
CERTIFICATE No(s):
--------------------------------------------------
The person in whose name this certificate is executed below (the "UNDERSIGNED")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER."
The Specified Securities are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of a Restricted
Capital Security. In connection with such transfer, the Owner hereby certifies
that, unless such transfer is
being effected pursuant to an effective registration statement under the
Securities Act, it is being effected in accordance with Rule 144A, Regulation D,
Regulation S or Rule 144 under the Securities Act and all applicable securities
laws of the states of the United States and other jurisdictions. Accordingly,
the Owner hereby further certifies that
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer.
(2) Regulation S Transfers. If the transfer is being effected in
accordance with Regulation S:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or the Issuer Trust or any such distributor
or a person acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either;
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf know that the transaction
has been prearranged with a buyer in the United States;
(D) no directed selling efforts within the meaning of
Regulation S have been made in the United States by or on behalf of
the Owner or any affiliate thereof; and
(E) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(3) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the date the Specified Securities were
acquired from the Company or the Issuer Trust or from an affiliate
(as such term is defined in Rule 144) of the Company or the Issuer
Trust, or such shorter period as Rule 144 may hereinafter require,
whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of
paragraphs (e), (f) and (h) of Rule 144;
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the date the Specified Securities
were acquired from the Company or the Issuer Trust or from an
affiliate (as such term is defined in Rule 144) of the Company or
the Issuer Trust, whichever is later, and the Owner is not, and
during the preceding three months has not been, an affiliate of the
Company or the Issuer Trust; or
(C) the Owner is a Qualified Institutional Buyer under Rule
144A or has acquired the Securities otherwise in accordance with
Sections (1), (2) or (3) hereof and is transferring the Securities
to an institutional accredited investor in a transaction exempt from
the requirements of the Securities Act, and in accordance with
Section 4 hereof.
(4) Institutional Accredited Investor Transfers. If the transfer is
to an Institutional Accredited Investor:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably
believe is an "INSTITUTIONAL ACCREDITED INVESTOR" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under Securities Act acquiring
for its own account or for the account of a qualified institutional
buyer;
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Regulation D under the Securities Act in
connection with the transfer; and
(C) no general solicitation within the meaning of Regulation D
has been made by or on behalf of the Owner or any affiliate thereof.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company, the Issuer Trust and the Initial
Purchaser.
Dated:
--------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By: ----------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)