<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 30, 1996
--------------------
Hartford Capital II
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its chart
Delaware 1-13958-02 06-6431733
- --------------------------------------------------------------------------------
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) No.)
c/o Hartford Group, Inc., Hartford Plaza, Hartford, CT 06115
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (860) 547-5000
----------------
None
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report.)
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
On September 25, 1996, ITT Hartford Group, Inc. (the "Company") and
Hartford Capital II, Hartford Capital III and Hartford Capital IV filed a
Registration Statement on Form S-3 (No. 333-12617) that also constituted Post-
Effective Amendment No. 1 to the Company's existing Registration Statement on
Form S-3 (No. 33-98014). Such Registration Statement and Post-Effective
Amendment No. 1 was declared effective by the Commission on October 2, 1996.
On October 30, 1996, Hartford Capital II issued 20,000,000 8.35% Cumulative
Quarterly Income Preferred Securities, Series B, guaranteed to the extent
provided in the Registration Statement and Post-Effective Amendment No. 1 by the
Company. The sole assets of Hartford Capital II are $515,463,925 of 8.35% Junior
Subordinated Deferrable Interest Debentures, Series B, of the Company.
This Form 8-K includes as exhibits the executed Amended and Restated Trust
Agreement of Hartford Capital II, a specimen certificate representing the
executed and authenticated Series B Debentures, and the opinion of Debevoise &
Plimpton as to United States tax matters. These exhibits are being filed
herewith for purposes of incorporation by reference, pursuant to Rule 12b-32(a)
under the Securities Exchange Act of 1934, in the Registration Statement and
Post-Effective Amendment No. 1.
(c) Exhibits.
Description
-----------
Exhibit Number by Reference to
Item 601 of Regulation S-K
- -------------------------------
4.1 Amended and Restated Trust
Agreement of Hartford Capital
II, dated as of October 30,
1996, between ITT Hartford
Group, Inc., as Depositor, and
Wilmington Trust Company, as
Trustee
4.2 Specimen of ITT Hartford
Group, Inc.'s 8.35% Junior
Subordinated Deferrable
Interest Debenture, Series B,
Due October 30, 2026.
8 Opinion of Debevoise &
Plimpton, as to United States
tax matters.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HARTFORD CAPITAL II
By: ITT HARTFORD GROUP, INC.,
as Depositor
November 4, 1996 By: /s/ J. Richard Garrett
- ------------------ ------------------------
(Date) Name: J. Richard Garrett
Title: Vice President and
Treasurer
3
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Description
- ------- -----------
4.1 Amended and Restated Trust Agreement of
Hartford Capital II, dated as of October
30, 1996, between ITT Hartford Group,
Inc., as Depositor, and Wilmington Trust
Company, as Trustee
4.2 Specimen of ITT Hartford Group, Inc.'s
8.35% Junior Subordinated Deferrable
Interest Debenture, Series B, Due October
30, 2026.
8 Opinion of Debevoise & Plimpton, as to
United States tax matters.
4
<PAGE>
EXHIBIT 4.1
EXECUTION COPY
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
ITT HARTFORD GROUP, INC., as Depositor,
Wilmington Trust Company, as Property Trustee
and Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of October 30, 1996
HARTFORD CAPITAL II
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
ARTICLE I
DEFINED TERMS
-------------
Section 101. Definitions.................................... 2
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 201. Name........................................... 12
Section 202. Office of the Delaware Trustee; Principal
Place of Business.............................. 12
Section 203. Initial Contribution of Trust Property;
Organizational Expenses........................ 12
Section 204. Issuance of the Preferred Securities........... 12
Section 205. Subscription and Purchase of Debentures;
Issuance of the Common Securities.............. 13
Section 206. Declaration of Trust........................... 14
Section 207. Authorization to Enter into Certain
Transactions................................... 14
Section 208. Assets of Trust................................ 19
Section 209. Title to Trust Property........................ 19
ARTICLE III
PAYMENT ACCOUNT
Section 301. Payment Account................................ 19
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 401. Distributions.................................. 20
Section 402. Redemption..................................... 21
Section 403. Subordination of Common Securities............. 23
Section 404. Payment Procedures............................. 24
Section 405. Tax Returns and Reports........................ 25
Section 406. Payment of Taxes, Duties, Etc. of the Trust.... 25
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 501. Initial Ownership.............................. 25
Section 502. The Trust Securities Certificates.............. 26
Section 503. Delivery of Trust Securities Certificates...... 26
i
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Section 504. Registration of Transfer and Exchange of
Preferred Securities Certificates............... 26
Section 505. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates......................... 27
Section 506. Persons Deemed Securityholders.................. 28
Section 507. Access to List of Securityholders' Names and
Addresses....................................... 28
Section 508. Maintenance of Office or Agency................. 29
Section 509. Appointment of Paying Agent..................... 29
Section 510. Ownership of Common Securities by Depositor..... 30
Section 511. Book-Entry Preferred Securities Certificates;
Common Securities Certificate................... 30
Section 512. Notices to Clearing Agency...................... 32
Section 513. Definitive Preferred Securities Certificates.... 32
Section 514. Rights of Securityholders....................... 33
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 601. Limitations on Voting Rights.................... 33
Section 602. Notice of Meetings.............................. 34
Section 603. Meetings of Preferred Securityholders........... 35
Section 604. Voting Rights................................... 35
Section 605. Proxies, etc.................................... 35
Section 606. Securityholder Action by Written Consent........ 36
Section 607. Record Date for Voting and Other Purposes....... 36
Section 608. Acts of Securityholders......................... 36
Section 609. Inspection of Records........................... 38
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 701. Representations and Warranties of the Bank,
the Property Trustee and the Delaware
Trustee......................................... 38
ARTICLE VIII
THE TRUSTEES
Section 801. Certain Duties and Responsibilities............. 40
Section 802. Notice of Defaults.............................. 42
Section 803. Certain Rights of Property Trustee.............. 42
Section 804. Not Responsible for Recitals or Issuance of
Securities...................................... 45
ii
<PAGE>
Section 805. May Hold Securities............................. 45
Section 806. Compensation; Indemnity; Fees................... 46
Section 807. Corporate Property Trustee Required;
Eligibility of Trustees......................... 46
Section 808. Conflicting Interests........................... 47
Section 809. Co-Trustees and Separate Trustee................ 47
Section 810. Resignation and Removal; Appointment of
Successor....................................... 49
Section 811. Acceptance of Appointment by Successor.......... 51
Section 812. Merger, Conversion, Consolidation or
Succession to Business.......................... 52
Section 813. Preferential Collection of Claims Against
Depositor or Trust.............................. 53
Section 814. Reports by Property Trustee..................... 53
Section 815. Reports to the Property Trustee................. 54
Section 816. Evidence of Compliance with Conditions
Precedent....................................... 54
Section 817. Number of Trustees.............................. 54
Section 818. Delegation of Power............................. 55
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 901. Termination Upon Expiration Date................ 55
Section 902. Early Termination............................... 55
Section 903. Termination..................................... 56
Section 904. Liquidation..................................... 56
Section 905. Mergers, Consolidations, Amalgamations or
Replacements of the Trust....................... 58
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 1001. Limitation of Rights of Securityholders......... 59
Section 1002. Amendment....................................... 60
Section 1003. Separability.................................... 61
SECTION 1004. GOVERNING LAW................................... 61
Section 1005. Payments Due on Non-Business Day................ 61
Section 1006. Successors...................................... 62
Section 1007. Headings........................................ 62
Section 1008. Reports, Notices and Demands.................... 62
Section 1009. Agreement Not to Petition....................... 63
Section 1010. Trust Indenture Act; Conflict with Trust
Indenture Act................................... 63
Section 1011. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture......................... 65
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depository Agreement
iii
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Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities
iv
<PAGE>
Hartford Capital II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
(S) 310 (a)(1)................................................8.7
(a)(2)................................................8.7
(a)(3)................................................8.9
(a)(4)................................................2.7(a)(ii)
(b)...................................................8.8
(S) 311 (a)...................................................8.13
(b)...................................................8.13
(S) 312 (a)...................................................5.7
(b)...................................................5.7
(c)...................................................5.7
(S) 313 (a)...................................................8.14(a)
(a)(4)................................................8.14(b)
(b)...................................................8.14(b)
(c)...................................................10.8
(d)...................................................8.14(c)
(S) 314 (a)...................................................8.15
(b)...................................................Not Applicable
(c)(1)................................................8.16
(c)(2)................................................8.16
(c)(3)................................................Not Applicable
(d)...................................................Not Applicable
(e)...................................................1.1, 8.16
(S) 315 (a)...................................................8.1(a), 8.3(a)
(b)...................................................8.2, 10.8
(c)...................................................8.1(a)
(d)...................................................8.1, 8.3
(e)...................................................Not Applicable
(S) 316 (a)...................................................Not Applicable
(a)(1)(A).............................................Not Applicable
(a)(1)(B).............................................Not Applicable
(a)(2)................................................Not Applicable
(b)...................................................Not Applicable
(c)...................................................6.7
(S) 317 (a)(1)................................................Not Applicable
(a)(2)................................................Not Applicable
(b)...................................................5.9
(S) 318 (a)...................................................10.10
_______________
Note: This reconciliation and tie sheet shall not, for any
purpose, be deemed to be a part of the Trust Agreement.
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of October 30, 1996, among
(i) ITT Hartford Group, Inc., a Delaware corporation (including any successors
-
or assigns, the "Depositor"), (ii) Wilmington Trust Company, a Delaware banking
--
corporation duly organized and existing under the laws of the State of Delaware,
as property trustee and Delaware trustee (in each such capacity, the "Property
Trustee" and "Delaware Trustee," respectively, and, in its separate corporate
capacity and not in its capacity as Property Trustee or Delaware Trustee, the
"Bank"), (iii) J. Richard Garrett, an individual, and Michael O'Halloran, an
---
individual, each of whose address is c/o ITT Hartford Group, Inc., Hartford
Plaza, Hartford, Connecticut 06115 (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (iv) the several Holders, as hereinafter defined.
--
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Trust Agreement, dated as of October
25, 1995 (the "Original Trust Agreement"), and by the execution and filing by
the Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on October 25, 1995, attached as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend and restate
the Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
-
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
--
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
---
from the Depositor of all of the right, title and interest in the Debentures and
(iv) the appointment of the Administrative Trustees;
--
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other party and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
<PAGE>
ARTICLE I
DEFINED TERMS
-------------
Section 101. Definitions.
-----------
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 608.
---
"Additional Amount" 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 Deben tures
for such period.
"Administrative Trustee" means each of J. Richard Garrett and Michael
----------------------
O'Halloran, solely in his capacity as Administrative Trustee of the Trust formed
and continued hereunder and not in his individual capacity, or such Adminis
trative Trustee's successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person 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 securi-
2
<PAGE>
ties, by contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
----
"Bankruptcy Event" means, with respect to any Person:
----------------
(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, adjudi cation 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 1009.
---------------
"Board Resolution" means a copy of a resolution certified by the Secretary,
----------------
the Corporate Secretary or an Assistant Secretary of the Depositor to have been
duly adopted by the Depositor's Board of Directors, or such committee of the
Board of Directors or officers of the Company to which
3
<PAGE>
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 Trustees.
"Book Entry Preferred Securities Certificates" means a beneficial interest
--------------------------------------------
in the Preferred Securities Cer tificates, ownership and transfers of which
shall be made through book entries by a Clearing Agency as described in Section
511.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
------------ - -
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed, or (c) a day on which the Property
-
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust, the
--------------------------------
Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
---------------
pursuant to Section 17A of the Se curities Exchange Act of 1934, as amended.
The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
---------------------------
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means the First Time of Delivery as defined in the
------------
Underwriting Agreement, which date is also the date of execution and delivery of
this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Commission" means the Securities and Exchange Commission, as from time to
----------
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
4
<PAGE>
"Common Security" means an undivided beneficial interest in the assets of
---------------
the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
-----------------------------
Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property Trustee
----------------------
located in Wilmington, Delaware.
"Debenture Event of Default" means an "Event of Default" as defined in the
--------------------------
Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
-------------------------
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means Wilmington Trust Company, a Delaware banking
-----------------
corporation organized under the laws of the State of Delaware and any successor
thereto.
"Debentures" means the $515,463,925 principal amount of the Depositor's
----------
8.35% Junior Subordinated Deferrable Interest Debentures, Series B, issued
pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as the
--------------------------------------------
context requires) of (a) Preferred Securities Certificates issued in
-
certificated, fully reg istered form as provided in Section 511(a) and (b)
-
Preferred Securities Certificates issued in certificated, fully reg istered form
as provided in Section 513.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
---------------------------
Code, 12 Del. C. (S) 3801, et seq., as it may be amended from time to time.
-- ---
"Delaware Trustee" means the commercial bank or trust company identified as
----------------
the "Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust formed and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any successor trustee appointed as herein provided.
5
<PAGE>
"Depositor" has the meaning specified in the preamble to this Trust
---------
Agreement.
"Distribution Date" has the meaning specified in Section 401(a).
-----------------
"Distributions" means amounts payable in respect of the Trust Securities as
-------------
provided in Section 401.
"Event of Default" means any one of the following events (whatever the
----------------
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any ad
ministrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a period
of 30 days; or
(c) default by the Property Trustee in the payment of any Redemption Price
of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in whose performance or breach is dealt with in
clause (b) or (c), above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
-----------------
between the Depositor and the Trust,
6
<PAGE>
substantially in the form attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 901.
---------------
"Guarantee" means the Guarantee Agreement executed and delivered by the
---------
Depositor and Wilmington Trust Company, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the holders
of the Preferred Securities, as amended from time to time.
"Indenture" means the Junior Subordinated Indenture, dated as of October
---------
30, 1996, between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
----
trust, adverse ownership interest, hy pothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrange ment
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
----------- -
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
-
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
------------------
"Liquidation Date" means each Date on which Debentures are to be
----------------
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 904(a).
"Liquidation Distribution" has the meaning specified in Section 904(d).
------------------------
"1940 Act" means the Investment Company Act of 1940, as amended.
--------
7
<PAGE>
"Officers' Certificate" means a certificate signed by the Chairman and
---------------------
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary, the
Corporate Secretary or an Assistant Secretary, of the Depositor, and delivered
to the appropriate Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 816 shall be the principal executive,
financial or accounting officer of the Depositor. Any Officers' Cer tificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
------------------
for the Trust, the Property Trustee or the Depositor, but not an employee of any
thereof, and who shall be acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
------------------------
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means, as of
-----------
the date of determination, all Preferred Securities theretofore executed and
delivered under this Trust Agreement, except:
------
(a) Preferred Securities theretofore cancelled by the Administrative
Trustees or delivered to the Administrative Trustees for cancellation;
8
<PAGE>
(b) Preferred Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securi ties; provided that, if
--------
such Preferred Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in exchange for or in
lieu of which other Preferred Securi ties have been executed and delivered
pursuant to Sections 504, 505, 511 and 513;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Af filiate of
the Depositor or any Trustee shall be disregarded and deemed not to be
Outstanding, except that (a) in determining whether any Trustee shall be
-
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Trustee knows to
be so owned shall be so disregarded and (b) the foregoing shall not apply at any
-
time when all of the outstanding Preferred Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee estab lishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book Entry
-----
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as re flected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
------------
to Section 509 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
---------------
account maintained by the Property Trustee with the Bank in its trust department
for the benefit
9
<PAGE>
of the Securityholders in which all amounts paid in respect of the Debentures
will be held and from which the Property Trustee shall make payments to the
Securityholders in ac cordance with Sections 401 and 402.
"Person" means any individual, corporation, partnership, joint venture,
------
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
------------------
of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership
--------------------------------
of Preferred Securities, substantially in the form attached as Exhibit E.
"Property Trustee" means the commercial bank or trust company identified as
----------------
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
---------------
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
- --------
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
----------------
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the date of re demption, plus the related amount of the
premium, if any, paid by the Depositor upon the concurrent redemption of a Like
Amount of Debentures, allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 810.
----------------
"Securities Register" and "Securities Registrar" have the respective
------------------- --------------------
meanings specified in Section 504.
10
<PAGE>
"Securityholder" or "Holder" means a Person in whose name a Trust Security
-------------- ------
or Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Trust" means the Delaware business trust created and continued hereby and
-----
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
---------------
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
-------------------
the date as of which this instrument was executed; provided, however, that in
-------- -------
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the Property
-------------- - -
Trustee under the Guarantee, (c) any cash on deposit in, or owing to, the
-
Payment Account and (d) all proceeds and rights in respect of the foregoing and
-
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
--------------
Securities.
"Trust Securities Certificate" means any one of the Common Securities
----------------------------
Certificates or the Preferred Securities Certificates.
"Underwriting Agreement" means the Pricing Agreement, dated as of October
----------------------
25, 1996, among the Trust, the Depositor and the Underwriters named therein
incorporating the Underwriting Agreement, dated as of October 25, 1996.
11
<PAGE>
ARTICLE II
ESTABLISHMENT OF THE TRUST
--------------------------
Section 201. Name.
----
The Trust continued hereby shall be known as "Hartford Capital II," as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
Section 202. Office of the Delaware Trustee;
-------------------------------
Principal Place of Business.
---------------------------
The address of the Delaware Trustee in the State of Delaware is c/o
Wilmington Trust Company, 1105 N. Market Street, Wilmington, Delaware,
Attention: Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o ITT Hartford Group, Inc., Hartford Plaza, Hartford, Connecticut 06115.
Section 203. Initial Contribution of Trust
-----------------------------
Property; Organizational Expenses.
---------------------------------
The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such ex
penses.
Section 204. Issuance of the Preferred
-------------------------
Securities.
----------
On October 25, 1996, the Depositor, on behalf of the Trust and
pursuant to the Original Trust Agreement, executed and delivered the
Underwriting Agreement. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 502 and deliver to the Underwriters named
therein Preferred Securities Certificates, registered in the name of the nominee
of the initial Clearing Agency, in an
12
<PAGE>
aggregate amount of 20,000,000 Preferred Securities having an aggregate
Liquidation Amount of $500,000,000, against receipt of the aggregate purchase
price of such Preferred Securities of $500,000,000, which amount the
Administrative Trustees shall promptly deliver to the Property Trustee.
Section 205. Subscription and Purchase of
----------------------------
Debentures; Issuance of the
----------------------------
Common Securities.
-----------------
Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the name of the
Trust and having an aggregate principal amount equal to $515,463,925 and, in
satisfaction of the purchase price for such De bentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of $500,000,000.
Con temporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall execute in accordance with Section 503 and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, in an
aggregate amount of 618,557 Common Securities having an aggregate Liquidation
Amount of $15,463,925 against payment by the Depositor of the sum of
$15,463,925.
Section 206. Declaration of Trust.
--------------------
The exclusive purposes and functions of the Trust are (a) to issue and
-
sell Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (b) to engage in those activities necessary, convenient or
-
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust
for the sole and limited purpose of fulfilling the requirements of Section 3807
of the Delaware Business Trust Act.
13
<PAGE>
Section 207. Authorization to Enter into Certain
-----------------------------------
Transactions.
------------
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the Certificate
Depository Agreement and such other agreements as may be necessary or desirable
in connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities under
the Securities Act of 1933, as amended, and under state securities or blue sky
laws, and the qualification of this Trust Agreement as a trust indenture under
the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such
securities exchange or ex changes as shall be determined by the Depositor and
the registration of the Preferred Securities under the Securities Exchange Act
of 1934, as amended, and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other
information regarding the Trust Securities and the Debentures to the
14
<PAGE>
Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, authenticating agent and
Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with
this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding up of
the affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of can cellation with the Secretary of State of the
State of Delaware;
(I) unless otherwise determined by the Depositor, the Property Trustee
or the Administrative Trustees, or as otherwise required by the Delaware
Business Trust Act or the Trust Indenture Act, to execute on behalf of the Trust
(either acting alone or together with any or all of the Administrative Trustees)
any documents that the Administrative Trustees have the power to execute
pursuant to this Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement for the ben efit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments made
in respect of the De bentures in the Payment Account;
(D) the distribution of amounts owed to the Securityholders in respect
of the Trust Securities;
15
<PAGE>
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information regarding
the Trust Securities and the Debentures to the Securityholders in ac cordance
with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding up of
the affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of can cellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default the taking of any action incidental to
the foregoing as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the Security holders
(without consideration of the effect of any such action on any particular
Securityholder);
(J) registering transfers of the Trust Se curities in accordance with
this Trust Agreement; and
(K) subject to this Section 207(a)(ii), the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the Ad
ministrative Trustees set forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or con templated
hereby. In particular, the Trustees shall not (i) acquire any investments or
-
engage in any activities not authorized by this Trust Agreement, (ii) sell,
--
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
---
Trust to fail or cease to qualify as a "grantor trust" for federal
16
<PAGE>
income tax purposes, (iv) incur any indebtedness for borrowed money or issue any
--
other debt or (v) take or consent to any action that would result in the
-
placement of a Lien on any of the Trust Property. The Administrative Trustees
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission and to
execute on behalf of the Trust a registration statement on Form S-3 or S-4 in
relation to the Preferred Securities, including any amendments thereto;
(ii) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to do any and
all such acts, other than actions which must be taken by or on behalf of the
Trust, and advise the Trustees of actions they must take on behalf of the Trust,
and prepare for execution and filing any documents to be executed and filed by
the Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such States;
(iii) to prepare for filing by the Trust and to execute on behalf of the
Trust an application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of issuance of
any Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission and to execute
on behalf of the Trust a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act, including any amendments thereto;
17
<PAGE>
(v) to negotiate the terms of, and execute and deliver, the
Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) any other actions necessary or desirable to carry out any of the
foregoing activities.
(d) Notwithstanding anything herein to the con trary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
of 1940, as amended, or taxed as a corporation for United States federal income
tax purposes and so that the Debentures will be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection,
the Depositor and the Administrative Trustees are authorized to take any action,
not inconsistent with ap plicable law, the Certificate of Trust or this Trust
Agree ment, that each of the Depositor and the Administrative Trustees
determines in their discretion to be necessary or desirable for such purposes,
as long as such action does not adversely affect in any material respect the
interests of the holders of the Preferred Securities.
Section 208. Assets of Trust.
---------------
The assets of the Trust shall consist of the Trust Property.
Section 209. Title to Trust Property.
-----------------------
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders in accordance with
this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
---------------
Section 301. Payment Account.
---------------
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
18
<PAGE>
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
-------------------------
Section 401. Distributions.
-------------
(a) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accrue from October 30, 1996, and,
except in the event that the Depositor exercises its right to extend the
interest payment period for the Debentures pursuant to the Indenture, shall be
payable quarterly in arrears on March 31, June 30, September 30 and December 31
of each year, commencing on December 31, 1996. If any date on which
Distributions are otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date (each date on which Distributions are payable in
accordance with this Section 401(a) a "Distribution Date").
(b) The Trust Securities represent undivided bene ficial interests in
the Trust Property, and, as a practical matter, the Distributions on the Trust
Securities shall be payable at a rate of 8.35% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions payable for any
full quarterly period shall be computed on the basis of a 360-day year of twelve
30-day months. If the interest payment period for the Debentures is extended
pursuant to
19
<PAGE>
Section 311 of the Indenture or the Debentures, then the rate per annum at which
Distributions on the Trust Securities accumulate shall be increased by an amount
such that the aggregate amount of Distributions that accumulate on all Trust
Securities during any such extended interest payment period is equal to the
aggregate amount of interest (including interest payable on unpaid interest at
the rate of 8.35% of the Liquidation Amount of the Trust Securities per annum,
compounded quarterly) that accrues during any such extended interest payment
period on the Debentures. The amount of Distributions for any partial period
shall be computed on the basis of the number of days elapsed in a 360-day year
of twelve 30-day months. The amount of Distributions payable for any period
shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one Business Day prior to such Distribution Date; provided, however,
-------- -------
that in the event that the Preferred Securities do not remain in book-entry-only
form, the relevant record date shall be the date 15 days prior to the relevant
Distribution Date.
Section 402. Redemption.
----------
(a) On each Debenture Redemption Date and on the stated maturity of
the Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
20
<PAGE>
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be redeemed,
the identification and the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Re demption Price will become
due and payable upon each such Trust Security to be redeemed and that
distributions thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Re demption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of De bentures. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to the
extent that the Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect
of any Preferred Securities, then, by 12:00 noon, New York time, on the
Redemption Date, subject to Section 402(c), the Property Trustee will, so long
as the Preferred Securities are in book-entry-only form, irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders thereof.
If the Preferred Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 402(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Register
for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Security holders to receive the Redemption Price and
any Distribution payable on or prior to the Redemption Date, but without inter-
21
<PAGE>
est, and such Securities will cease to be outstanding. In the event that any
date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Trust or by the Depositor pursuant to the Guarantee, Dis
tributions on such Trust Securities will continue to accrue, at the then
applicable rate, from the Redemption Date orig inally established by the Trust
for such Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be one Business
Day prior to the relevant Redemption Date; provided, however, that in the event
-------- -------
that the Preferred Securities do not remain in book-entry-only form, the
relevant record date shall be the fifteenth day prior to the Redemption Date.
(f) Subject to Section 403(a) if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method as the Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $25 or an
integral multiple of $25 in excess thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25. The Property Trustee
shall promptly notify the Security Registrar in writing of the Preferred
Securities selected for redemption and, in the case of any Preferred Securities
selected for partial redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust
22
<PAGE>
Agreement, unless the context otherwise requires, all pro visions relating to
the redemption of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part, to the portion of
the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
Section 403. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made subject to Section 402(f) pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
-------- -------
Redemption Date a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or Redemption
Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Debenture Event of Default,
the Holder of Common Securities will be deemed to have waived any right to act
with respect to any such Event of Default under this Trust Agreement until the
effect of all such Events of Default with respect to the Preferred Securities
have been cured, waived or otherwise eliminated. Until any such Event of
Default under this Trust Agreement with respect to the Preferred Securities has
been so cured, waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the Holders of the Preferred Securities and not the Holder
of the Common Securities, and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee to act on their behalf.
23
<PAGE>
Section 404. Payment Procedures.
------------------
Payments in respect of the Preferred Securities shall be made by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Se curities Register or, if the Preferred Securities are held by a
Clearing Agency, such Distributions shall be made to the Clearing Agency in
immediately available funds, which shall credit the relevant Persons' accounts
at such Clearing Agency on the applicable Distribution Dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Common Securityholder.
Section 405. Tax Returns and Reports.
-----------------------
The Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense, and file all Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
-
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
-
each Securityholder the appropriate Internal Revenue Service form required to be
furnished to such Securityholder or the information required to be provided on
such form. The Administrative Trustees shall provide the Depositor and the
Property Trustee with a copy of all such returns, reports and schedules promptly
after such filing or furnishing. The Trustees shall comply with United States
federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 406. Payment of Taxes, Duties, Etc. of
---------------------------------
the Trust.
---------
Upon receipt under the Debentures of Additional Sums (as defined in
the Indenture), the Property Trustee shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed
on the Trust by the United States or any other taxing authority.
Section 407. Payments under Indenture.
------------------------
Any amount payable hereunder to any Holder of Preferred Securities
(and any Owner with respect thereto)
24
<PAGE>
shall be reduced by the amount of any corresponding payment such Holder (and
Owner) has directly received pursuant to Section 508 of the Indenture.
ARTICLE V
TRUST SECURITIES CERTIFICATES
-----------------------------
Section 501. Initial Ownership.
-----------------
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 203 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
Section 502. The Trust Securities Certificates.
---------------------------------
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Security holder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due regis tration of such Trust
Securities Certificate in such trans feree's name pursuant to Sections 504, 511
and 513.
Section 503. Delivery of Trust Securities
----------------------------
Certificates.
------------
On the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 204 and 205, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any senior vice president or any vice
25
<PAGE>
president, treasurer or assistant treasurer or controller without further
corporate action by the Depositor, in au thorized denominations.
Section 504. Registration of Transfer and
----------------------------
Exchange of Preferred Securities
--------------------------------
Certificates.
------------
The Securities Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 508, a Securities Register in which,
subject to such reason able regulations as it may prescribe, the Securities
Registrar shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 510 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The Bank
shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
508, the Administrative Trustees or any one of them shall execute and deliver,
in the name of the designated transferee or transferees, one or more new
Preferred Securities Certificates in authorized de nominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees. The Securities Registrar shall not be required to register
the transfer of any Preferred Securities that have been called for redemption.
At the option of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized denominations of the
same class and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 508.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Administrative Trustees in accordance with their customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum
26
<PAGE>
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities Certificates.
Section 505. Mutilated, Destroyed, Lost or
-----------------------------
Stolen Trust Securities Certif-
-------------------------------
icates.
------
If (a) any mutilated Trust Securities Certificate shall be surrendered
-
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satis faction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
-
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available for delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Cer tificate,
a new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 506. Persons Deemed Securityholders.
------------------------------
The Administrative Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving distributions and for all other purposes whatsoever,
and neither the Trustees nor the Se curities Registrar shall be bound by any
notice to the contrary.
27
<PAGE>
Section 507. Access to List of Securityholders'
----------------------------------
Names and Addresses.
-------------------
The Administrative Trustees or the Depositor shall furnish or cause to
be furnished (a) to the Property Trustee, semi-annually on or before January 15
-
and July 15 in each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Securityholders as of the
most recent Record Date and (b) to the Property Trustee, promptly after receipt
-
by any Ad ministrative Trustee or the Depositor of a request therefor from the
Property Trustee in order to enable the Property Trustee to discharge its
obligations under this Trust Agree ment, in each case to the extent such
information is in the possession or control of the Administrative Trustees or
the Depositor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee in its capacity as Securities
Registrar. The rights of Security holders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities, and the corresponding rights of the Trustee shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the De positor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 508. Maintenance of Office or Agency.
-------------------------------
The Administrative Trustees shall maintain in The City of New York an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Trustees in respect of the Trust Securities
Certificates may be served. The Administrative Trustees initially designate the
Harris Trust Company, 77 Water Street, Fourth Floor, New York, New York 10005,
as its principal corporate trust office for such purposes. The Property Trustee
shall give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
28
<PAGE>
Section 509. Appointment of Paying Agent.
---------------------------
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying
Agent shall initially be the Bank, and any co-paying agent chosen by the Bank,
and acceptable to the Administrative Trustees and the Depositor. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Administrative Trustees, the Property Trustee and
the Depositor. In the event that the Bank shall no longer be the Paying Agent
or a successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Ad ministrative
Trustees to execute and deliver to the Trustees an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Trustees
that as Paying Agent, such successor Paying Agent or additional Paying Agent
will hold all sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Security holders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 801, 803 and 806 shall apply to the Bank
also in its role as Paying Agent, for so long as the Bank shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
Section 510. Ownership of Common Securities by
---------------------------------
Depositor.
---------
On the Closing Date and on each other date provided for in Section
205, the Depositor shall acquire and retain beneficial and record ownership of
the Common Securities. To
29
<PAGE>
the fullest extent permitted by law, other than a transfer in connection with a
consolidation or merger of the Depositor into another corporation, or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 801 of the
Indenture, any attempted transfer of the Common Securities shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
Section 511. Book-Entry Preferred Securities
-------------------------------
Certificates; Common Securities
-------------------------------
Certificate.
-----------
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no beneficial owner will
receive a Definitive Preferred Securities Certificate rep resenting such
beneficial owner's interest in such Preferred Securities, except as provided in
Section 513. Unless and until Definitive Preferred Securities Certificates have
been issued to beneficial owners pursuant to Section 513:
(i) the provisions of this Section 511(a) shall be in full force and effect;
(ii) the Securities Registrar and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Trust Agreement relating to
the Book-Entry Preferred Securities Certificates (including the payment of
principal of and interest on the Book-Entry Preferred Securities and the giving
of instructions or directions to Owners of Book-Entry Preferred Securities) as
the sole Holder of Book-Entry Preferred Securities and shall have no obligations
to the Owners thereof;
(iii) to the extent that the provisions of this Section 511 conflict with
any other provisions of this Trust Agreement, the provisions of this Section 511
shall control; and
30
<PAGE>
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such Owners and the
Clearing Agency and/or the Clearing Agency Par ticipants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Preferred Se
curities Certificates are issued pursuant to Section 513, the initial Clearing
Agency will make book-entry trans fers among the Clearing Agency Participants
and receive and transmit payments on the Preferred Securities to such Clearing
Agency Participants.
(b) A single Common Securities Certificate rep resenting the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 512. Notices to Clearing Agency.
--------------------------
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
513, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 513. Definitive Preferred Securities
-------------------------------
Certificates.
------------
If (a) the Depositor advises the Trustees in writing that the Clearing
-
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its option advises
-
the Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency or (c) after the occurrence of a Debenture Event of
-
Default, Owners of Preferred Securities Certificates representing beneficial
interests aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustees in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Owners of
Preferred Securities Certificates, then the Administrative Trustees shall notify
the Clearing Agency and the Clearing Agency shall notify all Owners of Preferred
Securities Certificates and the other Trustees of the occur rence of any such
event and of the availability of the
31
<PAGE>
Definitive Preferred Securities Certificates to Owners of such class or classes,
as applicable, requesting the same. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or Certificates
representing the Book-Entry Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency.
Neither the Securities Registrar nor the Trustees shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Securityholders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 514. Rights of Securityholders.
-------------------------
The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 209, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Securityholders against payment of the purchase price therefor will
be fully paid and nonassessable by the Trust. The Holders of the Trust
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Cor poration Law of the
State of Delaware.
32
<PAGE>
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
-----------------------------------------
Section 601. Limitations on Voting Rights.
----------------------------
(a) Except as provided in this Section, in Sections 810 and 1002 and
in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
-
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 513 of
--
the Indenture, (iii) exercise any right to rescind or annul a declaration that
---
the principal of all the Debentures shall be due and payable or (iv) consent to
--
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
outstanding Preferred Securities; provided, however, that where a consent under
-------- -------
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Preferred Securities, except by a subsequent vote of the Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing ap provals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be classified
as an association taxable as a corporation or partnership for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agree ment provides for,
or the Trustees otherwise propose to
33
<PAGE>
effect, (i) any action that would adversely affect in any material respect the
-
powers, preferences or special rights of the Preferred Securities, whether by
way of amendment to the Trust Agreement or otherwise, or (ii) the dissolution,
--
winding-up or termination of the Trust, other than pursuant to the terms of this
Trust Agreement, then the Holders of Outstanding Preferred Securities as a class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a majority in Liquidation Amount of the Outstanding Preferred Securities.
Section 602. Notice of Meetings.
------------------
Notice of all meetings of the Preferred Security holders, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 1008 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be
so considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 603. Meetings of Preferred
---------------------
Securityholders.
---------------
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which the Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Preferred Securities
(based upon their Liquidation Amount), present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their Liquidation
Amount) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute
34
<PAGE>
the action of the Securityholders, unless this Trust Agreement requires a
greater number of affirmative votes.
Section 604. Voting Rights.
-------------
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Security holders are entitled to vote.
Section 605. Proxies, etc.
------------
At any meeting of Securityholders, any Security holder entitled to
vote thereat may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the Ad
ministrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several persons,
any one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 606. Securityholder Action by Written
--------------------------------
Consent.
-------
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Se curities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
35
<PAGE>
Section 607. Record Date for Voting and Other
--------------------------------
Purposes.
--------
For the purposes of determining the Securityholders who are entitled
to notice of and to vote at any meeting or by written consent, or to participate
in any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Securityholders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Security holders of record for such
purposes.
Section 608. Acts of Securityholders.
-----------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
or taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 801) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
36
<PAGE>
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Security holders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand, author
ization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any person or entity.
Section 609. Inspection of Records.
---------------------
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
37
<PAGE>
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 701. Representations and Warranties of
---------------------------------
the Bank, the Property Trustee and
----------------------------------
the Delaware Trustee.
--------------------
The Bank, the Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that:
(a) the Bank is a Delaware State corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Bank and constitutes the valid and legally binding agreement of
the Bank en forceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(d) the execution, delivery and performance by the Bank of this Trust
Agreement has been duly authorized by all necessary corporate or other action on
the part of the Bank, the Property Trustee, and the Delaware Trustee and does
not require any approval of stockholders of the Bank and such execution,
delivery and performance will not (i) violate the Bank's Charter or By-laws,
-
(ii) violate any provision of, or constitute, with or without notice or lapse of
--
time, a default under, or result in the creation or imposition of, any Lien on
any properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Property Trustee, the Bank or the Delaware Trustee is a party or by
which it is bound, or (iii) violate any law, governmental rule or regulation of
---
the United States or the State of Delaware, as the case may be, governing the
banking or trust powers of the Bank, the Property Trustee
38
<PAGE>
or the Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee, the Bank or the Delaware Trustee;
(e) neither the authorization, execution or delivery by the Bank of
this Trust Agreement nor the consummation of any of the transactions by the
Bank, the Property Trustee, or the Delaware Trustee (as appropriate in context)
contemplated herein or therein requires the consent or approval of, the giving
of notice to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any existing federal law
governing the banking or trust powers of the Bank under the laws of the United
States or the State of Delaware;
(f) there are no proceedings pending or, to the best of each of the
Bank's and the Delaware Trustee's knowledge, threatened against or affecting the
Bank, the Property Trustee or the Delaware Trustee in any court or before any
governmental authority, agency or arbitration board or tribunal which,
individually or in the aggre gate, would materially and adversely affect the
Trust or would question the right, power and authority of the Bank to enter into
or perform its obligations as one of the Trustees under this Trust Agreement.
Section 702. Representations and Warranties of
---------------------------------
Depositor.
---------
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been duly authorized and, upon their execution,
issuance and delivery, will have been duly and validly executed, issued and
delivered by the Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement and the
Securityholders will be entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Bank, the
39
<PAGE>
Property Trustee or the Delaware Trustee, as the case may be, of this Trust
Agreement.
ARTICLE VIII
THE TRUSTEES
------------
Section 801. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. Not withstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release the Property
Trustee from liability for its own negligent action, its own failure to act, or
its own willful misconduct. To the extent that, at law or in equity, an
Administrative Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, such Administrative
Trustee shall not be liable to the Trust or to any Securityholder for such Trus
tee's good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Ad ministrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent
40
<PAGE>
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of any Trust
Security. This Section 801(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the case of the
Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property Trustee,
unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in Liquidation Amount of
the Trust Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Payment Account
shall be to deal with such Property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor. Money
held by the Property Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.01 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative
41
<PAGE>
Trustees or the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the default or
misconduct of the Administrative Trustees or the Depositor.
Section 802. Notice of Defaults.
------------------
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 1008, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to extend the interest payment period for the
Debentures pursuant to the Indenture, the Administrative Trustee shall transmit,
in the manner and to the extent provided in Section 1008, notice of such
exercise to the Securityholders and the Property Trustee, unless such exercise
shall have been revoked.
Section 803. Certain Rights of Property Trustee.
----------------------------------
Subject to the provisions of Section 801:
(a) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution, Opinion of Counsel,
cer tificate, written representation of a Holder or trans feree, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if, (i) in performing its duties under this Trust Agreement the
-
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions in this Trust Agreement the Property
--
Trustee finds the same ambiguous or in consistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
---
any provision of this Trust Agreement, then, except as to any matter as to which
the Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to
42
<PAGE>
the Depositor requesting written instructions of the Depositor as to the course
of action to be taken. The Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor; provided, however, that if
-------- -------
the Property Trustee does not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by
an Officer's Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officer's Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any in strument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel and the advice of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice, such counsel may be counsel
to the Depositor or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any time to seek
instructions concerning the ad-
43
<PAGE>
ministration of this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no ob ligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the request
or direction of any of the Securityholders pursuant to this Trust Agreement,
unless such Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties here under either directly or by or through its
agents or attorneys, provided that the Property Trustee shall be responsible for
--------
its own negligence or recklessness with respect to selection of any agent or
attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
-
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
--
taking such other action until such instructions are received, and (iii) shall
---
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement,
the Property Trustee shall not be under
44
<PAGE>
any obligation to take any action that is discretionary under the provisions of
this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 804. Not Responsible for Recitals or
-------------------------------
Issuance of Securities.
----------------------
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
Section 805. May Hold Securities.
-------------------
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 808 and 813, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 806. Compensation; Indemnity; Fees.
-----------------------------
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation
45
<PAGE>
and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(c) to indemnify each of the Trustees or any predecessor Trustee for,
and to hold the Trustees harmless against, any loss, damage, claims, liability,
penalty or expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this Trust
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 806.
Section 807. Corporate Property Trustee
--------------------------
Required; Eligibility of Trustees.
---------------------------------
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural person
-
who is at least 21 years
46
<PAGE>
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 ap plicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 808. Conflicting Interests.
---------------------
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
Section 809. Co-Trustees and Separate Trustee.
--------------------------------
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Depositor and the Ad ministrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to the extent required by law to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section. If the Depositor
does not join in such ap pointment within 15 days after the receipt by it of a
request so to do, or in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
-
a resident of the United States or (ii) a legal entity with its principal place
--
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed
47
<PAGE>
for more fully confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on request, be
executed, acknowledged, and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such co-
trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be ex ercised and performed
by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case an Event of Default under the Indenture has occurred and
is continuing, the Property Trustee shall have power to accept the res ignation
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 De
positor shall join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this Section.
48
<PAGE>
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 810. Resignation and Removal;
------------------------
Appointment of Successor.
------------------------
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in ac
cordance with the applicable requirements of Section 811.
Any Trustee may resign at any time with respect to the Trust
Securities by giving written notice thereof to the Securityholders. If the
instrument of acceptance by the successor Trustee required by Section 811 shall
not have been delivered to the Relevant Trustee within 30 days after the giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Company, any court of com petent jurisdiction for the appointment of a
successor Relevant Trustee with respect to the Trust Securities.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees with respect
49
<PAGE>
to the Trust Securities and the Trust, and the retiring Trustee shall comply
with the applicable requirements of Section 811. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when a Debenture Event of Default is continuing, the Preferred
Securityholders, by Act of the Securityholders of a majority in Liquidation
Amount of the Preferred Securities then Outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees with respect to the Trust Securities and the Trust, and such successor
Trustee shall comply with the applicable requirements of Section 811. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default shall have
occurred and be continuing, the Common Securityholder shall appoint a successor
or Administrative Trustees. If no successor Relevant Trustee with respect to
the Trust Securities shall have been so appointed by the Common Securityholder
or the Preferred Securityholders and accepted appointment in the manner required
by Section 811, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 1008 and shall give notice to
the De positor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
-
there are at least two of them or (b) otherwise by the Depositor (with the
-
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees set forth in Section 807).
50
<PAGE>
Section 811. Acceptance of Appointment by
----------------------------
Successor.
---------
In case of the appointment hereunder of a successor Trustee such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Trustee an instrument accepting such appointment, and
there upon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Depositor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and if the Property Trustee is the
resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee
with respect to the Trust Securities and the Trust, the retiring Relevant
Trustee and each successor Relevant Trustee with respect to the Trust Securities
shall execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such
-
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Trust and (b) shall add to or change any of the provisions of this Trust
-
Agreement as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees of the same trust and that each such Relevant Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Relevant Trustee and upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee with respect to the Trust Securities and the
Trust; but, on request of the Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to such
successor Relevant Trustee all Trust Property,
51
<PAGE>
all proceeds thereof and money held by such retiring Relevant Trustee hereunder
with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 812. Merger, Conversion, Consolidation
---------------------------------
or Succession to Business.
-------------------------
Any corporation into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or con
solidation to which such Relevant Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of such
Relevant Trustee, shall be the successor of such Relevant Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
Section 813. Preferential Collection of Claims
---------------------------------
Against Depositor or Trust.
--------------------------
If and when the Property Trustee or the Delaware Trustee shall be or
become a creditor of the Depositor or the Trust (or any other obligor upon the
Debentures or the Trust Securities), the Property Trustee or the Delaware
Trustee, as the case may be, shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
Section 814. Reports by Property Trustee.
---------------------------
(a) Within 60 days after December 31 of each year commencing with
December 31, 1996, the Property Trustee shall transmit to all Securityholders in
accordance with Section
52
<PAGE>
1008, and to the Depositor, a brief report dated as of such December 31 with
respect to:
(i) its eligibility under Section 807 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect;
(ii) a statement that the Property Trustee has complied with all of
its obligations under this Trust Agreement during the twelve-month period (or,
in the case of the initial report, the period since the Closing Date) ending
with such December 31 or, if the Property Trustee has not complied in any
material respect with such obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by the
Property Trustee in the performance of its duties hereunder which it has not
previously reported and which in its opinion materially affects the Trust
Securities.
(b) In addition the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each stock exchange upon which
the Trust Se curities are listed, with the Commission and with the De positor.
Section 815. Reports to the Property Trustee.
-------------------------------
The Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
53
<PAGE>
Section 816. Evidence of Compliance with
---------------------------
Conditions Precedent.
--------------------
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 817. Number of Trustees.
------------------
(a) The number of Trustees shall be four, provided that the Holder of
all of the Common Securities by written instrument may increase or decrease the
number of Ad ministrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 817(a), or if the
number of Trustees is increased pursuant to Section 817(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 810.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 810, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 818. Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
207(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
54
<PAGE>
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
-----------------------------------
Section 901. Termination Upon Expiration Date.
--------------------------------
Unless earlier terminated, the Trust shall au tomatically terminate on
October 25, 2050 (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 904.
Section 902. Early Termination.
-----------------
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) written direction given to the Property Trustee from the
Depositor at any time (which direction is optional and wholly within the
discretion of the Depositor) to terminate the Trust and distribute Debentures to
Securityholders in exchange for the Preferred Securities;
(c) the redemption of all of the Preferred Se curities; and
(d) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction.
Section 903. Termination.
-----------
The respective obligations and responsibilities of the Trustees and
the Trust created and continued hereby shall terminate upon the latest to occur
of the following: (a) the distribution by the Property Trustee to
-
Securityholders upon the liquidation of the Trust pursuant to Section 904, or
upon the redemption of all of the Trust Securities pursuant to
55
<PAGE>
Section 402, of all amounts required to be distributed hereunder upon the final
payment of the Trust Securities; (b) the payment of any expenses owed by the
-
Trust; and (c) the discharge of all administrative duties of the Administrative
-
Trustees, including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
Section 904. Liquidation.
-----------
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 902 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Security holder a Like Amount of Debentures,
subject to Section 904(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust Securities
will no longer be deemed to be outstanding and any Trust Securities Certificates
not surrendered for exchange will be deemed to represent a Like Amount of
Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or if Section
904(d) applies receive a Liquidation Distribution, as the Administrative
Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to effect
the liquidation of the Trust and dis tribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities will no
-
56
<PAGE>
longer be deemed to be outstanding, (ii) certificates representing a Like Amount
--
of Debentures will be issued to holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or their agent for
exchange, (iii) the Depositor shall use its reasonable efforts to have the
---
Debentures listed on the New York Stock Exchange or on such other exchange as
the Preferred Securities are then listed, (iv) any Trust Securities Certificates
--
not so surrendered for exchange will be deemed to represent a Like Amount of
Debentures, accruing interest at the rate provided for in the Debentures from
the last Distribution Date on which a Distribution was made on such Trust
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to holders of Trust Securities Certificates with respect to such
Debentures) and (v) all rights of Securityholders holding Trust Securities will
-
cease, except the right of such Securityholders to receive Debentures upon
surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 904, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders will be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after sat isfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liq uidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Dis tribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). The holder of the Common
Securities will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if a Debenture Event of Default
has occurred and is continuing, the
57
<PAGE>
Preferred Securities shall have a priority over the Common Securities.
Section 905. Mergers, Consolidations,
------------------------
Amalgamations or Replacements
-----------------------------
of the Trust.
------------
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 905. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the holders of the Preferred
Securities, the Trust may merge with or into, consolidate, amalgamate, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to a trust organized as such under the laws of any State;
provided, that (i) such successor entity either (a) expressly assumes all of the
- -------- - -
obligations of the Trust with respect to the Preferred Securities or (b)
-
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) the Depositor expressly appoints a trustee of such successor
--
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed, or any
---
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any, (iv) such merger, consolidation,
--
amalgamation, replacement, convey ance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be down graded by
any nationally recognized statistical rating organization, (v) such merger,
-
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose identical to that of the
--
Trust, (vii) prior to such merger, consolidation, amalgamation, replace ment,
---
conveyance, transfer or lease, the Depositor has received an Opinion of Counsel
to the effect that (a) such merger, consolidation, amalgamation, replacement,
-
conveyence, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
-
con-
58
<PAGE>
solidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
----
Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
Section 1001. Limitation of Rights of
-----------------------
Securityholders.
---------------
The death or incapacity of any person having an interest, beneficial
or otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Security 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 1002. Amendment.
---------
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) to
-
cure any ambiguity, correct or supplement any provision herein or therein which
may be inconsistent with any other provision herein or therein, or to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agree ment, or (ii) to modify, eliminate or add to any provisions of this
--
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for Federal income tax purposes as a grantor trust at all
times that any Trust
59
<PAGE>
Securities are outstanding or to ensure that the Trust will not be required to
register as an "investment company" under the 1940 Act; provided, however, that
-------- -------
in the case of clause (i), such action shall not adversely affect in any
material respect the interests of any Securityholder, and any amendments of this
Trust Agreement shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 1002(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with (i)
-
the consent of Trust Securityholders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
- ---
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
federal income tax purposes or the Trust's exemption from status of an
"investment company" under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 603 or 606 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
-
Distribution on the Trust Securities or other wise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as of
a spec ified date or (ii) restrict the right of a Securityholder to institute
--
suit for the enforcement of any such payment on or after such date;
notwithstanding any other provision herein without the unanimous consent of the
Securityholders (such consent being obtained in accordance with Section 603 or
606 hereof), this paragraph (c) of this Section 1002 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an "investment company" under the 1940 Act.
(e) Notwithstanding anything in this Trust Agree ment to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
60
<PAGE>
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects its
own rights, duties or immunities under this Trust Agreement. The Property
Trustee shall be entitled to receive an Opinion of Counsel and an Officer's
Certificate stating that any amendment to this Trust Agreement is in compliance
with this Trust Agreement.
Section 1003. Separability.
------------
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1004. GOVERNING LAW.
-------------
This Trust Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Trust Agreement
and the Trust Securities shall be construed in accordance with and governed by
the laws of the State of Delaware.
Section 1005. Payments Due on Non-Business Day.
--------------------------------
If the date fixed for any payment on any Trust Security shall be a day
which is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day which is a Business Day (except as
otherwise provided in Section 401(a)), with the same force and effect as though
made on the date fixed for such payment, and no interest shall accrue thereon
for the period after such date.
Section 1006. Successors.
----------
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Depositor that is permitted under
Article Eight of the Indenture and pursuant to which the assignee agrees in
writing to perform the Depositor's
61
<PAGE>
obligations hereunder, the Depositor shall not assign its obligations hereunder.
Section 1007. Headings.
--------
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
Section 1008. Reports, Notices and Demands.
----------------------------
Any report, notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
-
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
-
in the case of the Common Securityholder or the Depositor, to ITT Hartford
Group, Inc., Hartford Plaza, Hartford, Connecticut 06115, Attention: Treasurer,
facsimile no.: (860) 547-5966. Any notice to Preferred Securityholders shall
also be given to such owners as have, within two years preceding the giving of
such notice, filed their names and addresses with the Property Trustee for that
purpose. Such notice, demand or other communication to or upon a Securityholder
shall be deemed to have been sufficiently given or made, for all purposes, upon
hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to Wilmington Trust Company, 1105
-
Market Street, Wilmington, Delaware, Attention: Corporate Trust Department; (b)
-
with respect to the Delaware Trustee, to Wilmington Trust Company, 1105 Market
Street, Wilmington, Delaware, Attention: Cor porate Trust Department; and (c)
-
with respect to the Administrative Trustees, to them at the address above for
notices to the Depositor, marked "Attention: Administrative Trustees of Hartford
Capital II." Such notice, demand or other communication to or upon the Trust or
the Property Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or the Property Trustee.
62
<PAGE>
Section 1009. Agreement Not to Petition.
-------------------------
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 1009, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 1009 shall survive the
termination of this Trust Agreement.
Section 1010. Trust Indenture Act; Conflict with
----------------------------------
Trust Indenture Act.
-------------------
(a) This Trust Agreement is subject to the pro visions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent ap plicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the
63
<PAGE>
Securities as equity securities representing undivided beneficial interests in
the assets of the Trust.
64
<PAGE>
Section 1011. Acceptance of Terms of Trust
----------------------------
Agreement, Guarantee and Indenture.
----------------------------------
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
ITT HARTFORD GROUP, INC.
By: /s/ J. Richard Garrett
------------------------
Name: J. Richard Garrett
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY
as Property Trustee
and Delaware Trustee
By: /s/ W. Chris Sponenberg
-------------------------
Name: W. Chris Sponenberg
Title: Senior Financial Services
Officer
/s/ Michael O'Halloran
-------------------------
as Administrative Trustee
/s/ J. Richard Garrett
-------------------------
as Administrative Trustee
65
<PAGE>
State of Connecticut )
) ss. Hartford, Connecticut
County of Hartford )
On the 30th day of October, 1996 before me personally came J. Richard
Garrett to me known, who being duly sworn, did depose and say that he is Vice
President and Treasurer of ITT Hartford Group, Inc., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ Mary Anne Elsner [SEAL]
----------------------------
Mary Anne Elsner
Notary Public
My Commission Expires: April 30, 2000
<PAGE>
State of Delaware )
) ss.
County of New Castle )
On the 28th day of October, 1996 before me personally came W. Chris
Sponenberg to me known, who being duly sworn, did depose and say that he is an
Asst. Secretary and Sen. Fin. Svs. Off. of Wilmington Trust Company, a Delaware
banking corporation described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ Scott E. Kreps [SEAL]
----------------------- SCOTT E. KREPS NOTARY PUBLIC
Notary Public State of Delaware
My Commission Expires Date of Appointment: April 20, 1996
My Commission Expires: April 20, 1998
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
HARTFORD CAPITAL II
THIS CERTIFICATE OF TRUST of Hartford Capital II (the "Trust"), dated
October 25, 1995, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (S) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is Hartford
Capital II.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
Wilmington Trust Company, 1105 Market Street, Wilmington, Delaware, Attention:
Corporate Trust Department.
3. Effective Date. This Certificate of Trust shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
have executed this Certificate of Trust as of the date first above written.
/s/ Wilmington Trust Company
----------------------------
WILMINGTON TRUST COMPANY,
as Trustee
By /s/ W. Chris Sponenberg
---------------------------
Name: W. Chris Sponenberg
Title: Financial Services
Officer
A-1
<PAGE>
EXHIBIT B
October __, 1996
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: John C. Drennan
General Counsel's Office
Re: Preferred Securities
Hartford Capital II
% Cumulative Quarterly Income
Preferred Securities, Series B (QUIPS)
--------------------------------------
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to the
above-referenced Preferred Securities (CUSIP No. ) (the "Securities")
of Hartford Capital II, a Delaware statutory business trust (the "Issuer"). The
property trustee of the trust is the Wilmington Trust Company, a Delaware
banking corporation. The payment of dividends, to the extent that the Issuer
has sufficient cash on hand to permit such payments and funds legally available
therefor, and payments on liquidation or redemption with respect to the
Securities are guaranteed by ITT Hartford Group, Inc., to the extent set forth
in the Prospectus Supplement dated October , 1996 and in the Prospectus dated
October , 1996 relating to the offering of the Securities. The Issuer is
selling the Securities to certain underwriters (the "Underwriters") pursuant to
an Underwriting Agreement dated October , 1996, and the Underwriters wish to
take delivery of the Securities through The Depository Trust Company ("DTC").
Wilmington Trust Company is acting as registrar, transfer agent and paying agent
with respect to the Securities (the "Agent").
To induce DTC to accept the Securities as eligible for deposit at DTC, and to
act in accordance with its Rules with respect to the Securities, the Issuer and
the Agent make the following representations to DTC.
1. Prior to the closing of the sale of the Securities to the Underwriters,
which is expected to occur on or about , 1996, there shall be
deposited with DTC one or more global certificates (the "Global Certificate")
registered in the name of DTC's nominee, Cede & Co., for Securities.
B-1
<PAGE>
2. The terms of the Securities provide for the voting by holders of the
Securities (with no provision for revocation of consents or votes by subsequent
holders) under certain limited circumstances. The Issuer shall establish a
record date for such purposes and shall, to the extent possible, give DTC notice
of such record date not less than 15 calendar days in advance of such record
date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar trans action resulting in the cancellation
of all or any part of the securities outstanding, the Issuer or the Agent shall
send DTC a notice of such event as soon as practicable, but not less than five
calendar days prior to the effective date of such event.
4. In the event of a cash dividend payment or other distribution, or an
offering or issuance of rights with respect to outstanding Securities, the
Issuer or the Agent shall send DTC a notice specifying: (a) the amount of and
conditions, if any, applicable to such payment, distribution or rights offering
or issuance; (b) any applicable expiration or deadline date, or any date by
which any action on the part of the holders of Securities is required; and (c)
the date any required notice is to be mailed to holders of Securities or
published (the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
----
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Agent will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) which includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such
notice shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30 days
nor more than 60 days prior to such cash dividend payment, distribution or
offering or issuance of rights with respect to the Securities. After
establishing the amount of payment to be made on the Securities, the Agent will
notify DTC's Dividend Department of such payment five calendar days prior to the
date of such payment.
5. In the event of a redemption by the Issuer of the Securities, notice to
holders of the Securities by the Issuer or the Agent specifying the terms of the
redemption and the
B-2
<PAGE>
Publication Date of such notice shall be sent to DTC not less than 30 days prior
to such event by a secure means in the manner set forth in the preceding
paragraph. Such redemption notice shall be sent to DTC's Call Notification
Department at (516) 227-4164 or (516) 227-4190, and receipt of such notice shall
be confirmed by telephoning (516) 227-4070. Notice by mail or by any other
means shall be sent to:
Call Notification Department
The Depository Trust Partnership
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Securities, notice by the
Issuer to holders of the Securities specifying the terms of the tender and the
Publication Date of such notice shall be sent to DTC by a secure means and in a
timely manner as described in Paragraph 4. Notices to DTC pursuant to this
paragraph and notices of other corporate actions (including mandatory tenders,
exchanges and capital changes), shall be sent by telecopy to DTC's
Reorganization Department at (212) 709-1093 or (212) 709-1094 and receipt of
such notice shall be confirmed by telephoning (212) 709-6884, or by mail or any
other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Partnership
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities and the ac companying description of the Securities,
which, as of the date of this letter, is % Cumulative Quarterly Income
Preferred Securities, Series B".
8. Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. The Agent shall confirm DTC's receipt of such telecopy by telephoning
the Dividend Department at (212) 709-1270. Such notices by mail or by any other
means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Partnership
7 Hanover Square, 22nd Floor
New York, New York 10004
B-3
<PAGE>
9. Payments of dividends or other cash distributions with respect to the
Securities evidenced by the Global Certificate shall be received by Cede & Co.,
as nominee of DTC, or its registered assigns in same day funds on each payment
date (or in accordance with existing arrangements between the Issuer or the
Agent and DTC). Such payments shall be made payable to the order of Cede & Co.
10. Other cash payments shall be received by Cede & Co., as nominee of DTC,
or its registered assigns in same day funds on each payment date (or in
accordance with existing arrangements between the Issuer or the Agent and DTC).
Such payments shall be made payable to the order of Cede & Co., and shall be
addressed as follows:
NDFS Redemption Department
The Depository Trust Partnership
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
11. DTC may direct the Issuer or the Agent to use any other telecopy number
or address of DTC as the number or address to which notices or payments may be
sent.
12. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
----
Agent's invitation) neces sitating a reduction in the aggregate number of
Securities outstanding, DTC, in its discretion: (a) may request the Issuer or
the Agent to issue and countersign a new Security certificate; or (b) may make
an appropriate notation on the Security certificate indicating the date and
amount of such reduction.
13. DTC may discontinue its services as a securities depositary with respect
to the Global Certificate at any time by giving reasonable notice to the Issuer
and the Agent (at which time DTC will confirm with the Issuer and the Agent the
aggregate number of Securities deposited with it) and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, at DTC's request the Issuer and the Agent shall cooperate fully
with DTC by taking prompt appropriate action to make alternative arrangements
for book-entry settlement for the Securities or to make available one or more
separate certificates evidencing Securities, to any participant having
Securities credited to its DTC account.
B-4
<PAGE>
14. In the event that the Issuer determines that beneficial owners of
Securities should be able to obtain certificated Securities, the Issuer or the
Agent shall notify DTC of the availability of certificates. In such event, the
Issuer or the Agent shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others.
Issuer: (a) understands that DTC has no obligation to, and will not,
-
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
-
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificate(s) by virtue of submission of such certificate(s) to DTC.
This letter may be executed in any number of counter parts, each of which when
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
Nothing herein shall be deemed to require the Agent to advance funds on behalf
of the Issuer.
Very truly yours,
HARTFORD CAPITAL II
(as Issuer)
By ITT Hartford Group, Inc.,
as Depositor
By _________________________
Name: J. Richard Garrett
Title: Vice President and
Treasurer
WILMINGTON TRUST COMPANY
(as Registrar, Transfer
Agent and Paying Agent)
By _________________________
Name:
Title:
B-5
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number
Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
Hartford Capital II
_____% Common Securities
(liquidation amount $25 per Common Security)
Hartford Capital II, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that ITT Hartford
Group, Inc. (the "Holder") is the registered owner of ________ (_____) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the _____% Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). In accordance with
Section 510 of the Trust Agreement (as defined below) the Common Securities are
not transferable and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust dated as of October __, 1996, as the same may be amended from time
to time (the "Trust Agreement") including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
C-1
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this ______ day of October, 1996.
HARTFORD CAPITAL II
By___________________________
Name:
Administrative Trustee
C-2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of October __, 1996, between ITT Hartford Group, Inc.,
a Delaware corporation ("Hartford"), and Hartford Capital II, a Delaware
business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from Hartford and to issue and sell
_____% Cumulative Quar terly Income Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and re strictions
as are set forth in the Amended and Restated Trust Agreement of the Trust, dated
as of October __, 1996, as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, Hartford will directly or indirectly own all of the Common
Securities of Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Hartford hereby agrees shall benefit
Hartford and which purchase Hartford acknowledges will be made in reliance upon
the execution and delivery of this Agreement, Hartford and Trust hereby agree as
follows:
ARTICLE I
Section 1.1. Guarantee by Hartford.
---------------------
Subject to the terms and conditions hereof, Hartford hereby irrevocably
and unconditionally guarantees to each person or entity to whom the Trust is now
or hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust, other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
D-1
<PAGE>
Section 1.2. Term of Agreement.
-----------------
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
-
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date on which there are no
-
Beneficiaries remaining; provided, however, that this Agreement shall continue
-------- -------
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by Hartford and Wilmington Trust
Company as guarantee trustee or under this Agreement for any reason whatsoever.
This Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.3. Waiver of Notice.
----------------
Hartford hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and Hartford hereby waives
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
Section 1.4. No Impairment.
-------------
The obligations, covenants, agreements and duties of Hartford under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any portion
of the Obligations or for the performance of any other obligation under, arising
out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
D-2
<PAGE>
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Hartford with respect to the happening of any of the foregoing.
Section 1.5. Enforcement.
-----------
A Beneficiary may enforce this Agreement directly against Hartford and
Hartford waives any right or remedy to require that any action be brought
against the Trust or any other person or entity before proceeding against
Hartford.
ARTICLE II
Section 2.1. Binding Effect.
--------------
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Hartford and
shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
---------
So long as there remains any Beneficiary or any Preferred Securities of
any series are outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
Section 2.3. Notices.
-------
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Hartford Capital II
c/o Wilmington Trust Company
1105 Market Street
Wilmington, Delaware
Facsimile No.: (302) 651-8882
Attention: Corporate Trust Department
D-3
<PAGE>
ITT Hartford Group, Inc.
Hartford Plaza
Hartford, Connecticut
Facsimile No.: (860) 547-5966
Attention: Treasurer
Section 2.4. This agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York.
THIS AGREEMENT is executed as of the day and year first above written.
ITT HARTFORD GROUP, INC.
By:_________________________
Name:
Title:
HARTFORD CAPITAL II
By:_________________________
Name:
Administrative Trustee
D-4
<PAGE>
EXHIBIT E
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CER TIFICATE INSERT - This
Preferred Security is a Global Cer tificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the De pository.
This Preferred Security is exchangeable for Preferred Securities registered in
the name of a person other than the Depository or its nominee only in the
limited circumstances described in the Trust Agreement and no transfer of this
Preferred Security (other than a transfer of this Preferred Security as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to Hartford Capital II or its agent for registration of transfer, exchange
or payment, and any Preferred Security issued is registered in the name of Cede
& Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
Certificate Number Number of Preferred Securities
P-
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Hartford Capital II
______% Cumulative Quarterly Income Preferred Securities,
Series B
(liquidation amount $25 per Preferred Security)
Hartford Capital II, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that ____________________
(the "Holder") is the registered owner of ______ (______) preferred securities
of the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the Hartford Capital II
E-1
<PAGE>
_____% Cumulative Quarterly Income Preferred Securities, Series B (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are trans ferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 504 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Se curities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of October __, 1996, as the same may be amended from time to time (the "Trust
Agreement") including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by ITT Hartford Group, Inc., a Delaware corporation, and
Wilmington Trust Company, as guarantee trustee, dated as of October __, 1996
(the "Guarantee"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ______ day of October, 1996.
HARTFORD CAPITAL II
By:______________________________
Name:
Administrative Trustee
E-2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:_____________
Signature:___________________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
E-3
<PAGE>
EXHIBIT 4.2
[SPECIMEN]
ITT HARTFORD GROUP, INC.
8.35% Junior Subordinated Deferrable Interest Debentures
Series B, Due October 30, 2026
No. D-1 $515,463,925
ITT HARTFORD GROUP, INC., a corporation organized and existing under
the laws of Delaware (hereinafter called the "Company", which term includes any
-------
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to HARTFORD CAPITAL II, or registered assigns,
the principal sum of FIVE HUNDRED FIFTEEN MILLION FOUR HUNDRED SIXTY-THREE
THOUSAND NINE HUNDRED TWENTY-FIVE Dollars on October 30, 2026; provided that the
--------
Company may (i) change the maturity date upon the occurrence of an exchange of
the Securities for the Trust Securities subject to certain conditions set forth
in Section 314 of the Indenture, which changed maturity date shall in no case be
earlier than October 30, 2001 or later than October 30, 2026 (or October 30,
2045 subject to certain conditions set forth in Section 314 of the Indenture)
and (ii) extend the maturity date subject to certain conditions specified in
Section 314 of the Indenture, which extended maturity date shall in no case be
later than October 30, 2045. The Company further promises to pay interest on
said principal sum from October 30, 1996 or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
---------------------
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing December 31, 1996, at the rate of 8.35% per annum, until the
principal hereof shall have become due and payable, plus Additional Interest, if
any, until the principal hereof is paid or duly provided for or made available
for payment and on any overdue principal and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the rate of 8.35% per annum, compounded
quarterly. The amount of interest payable for any period will be computed on
the basis of twelve 30-day months and a 360-day year. The amount of interest
payable for any partial period shall
<PAGE>
be computed on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months. In the event that any date on which interest is payable
on this Security is not a Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was originally payable.
A "Business Day" shall mean any day other than a day on which banking
------------
institutions in the City of New York are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee or the principal office of the Property Trustee under the Trust
Agreement hereinafter referred to for Hartford Capital II, is closed for
business. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in the Indenture) is registered at the close of business
on the Regular Record Date for such interest installment, which shall be the
close of business on the Business Day next preceding such Interest Payment Date.
Any such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
The Company shall have the right at any time during the term of this
Security, from time to time, to defer the payment of interest on such Security
for up to 20 consecutive quarters with respect to each deferral period (each an
"Extension Period"), during which periods interest will compound quarterly and
----------------
the Company shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional
2
<PAGE>
Interest thereon to the extent permitted by applicable law); provided that
--------
during any such Extension Period, the Company will not, and will not permit any
Subsidiary of the Company to (i) declare or pay any dividends or distributions
-
on or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Company's outstanding capital stock or (ii) make any payment of
--
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities that rank pari passu with or junior in interest to this Security
---- -----
or make any guarantee payments with respect to the foregoing (other than (a)
-
dividends or distributions in common stock of the Company, (b) redemptions or
-
purchases of any rights pursuant to the Company's Rights Plan, or any successor
to such Rights Plan, and the declaration of a dividend of such rights in the
future, and (c) payments under any Hartford Guarantee (as defined in the
-
Indenture)). Prior to the termination of any such Extension Period, the Company
may further extend the interest payment period, provided that such Extension
--------
Period together with all such previous and further extensions of such Extension
Period, shall not exceed 20 consecutive quarters or extend beyond the Maturity
of this Security. Upon the termination of any such Extension Period and upon
the payment of all accrued and unpaid interest and any Additional Interest then
due, the Company may select a new Extension Period, subject to the above
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof. The Company shall give the Holder of this Security
and the Trustee notice of its selection of an Extension Period at least one
Business Day prior to the earlier of (i) the date the Distributions on the
-
Preferred Securities are payable or (ii) the date the Administrative Trustees
--
are required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities of the
record date or the date such Distributions are payable, but in any event not
less than one Business Day prior to such record date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
-------- -------
interest may be made (i) by check mailed to the address of the Person entitled
-
thereto as such address shall appear in the Securities Register or (ii) by wire
--
transfer in immediately available funds at such place and to such account as may
be designated
3
<PAGE>
by the Person entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, pari passu with the 7.70% Junior Subordinated Deferrable
---- -----
Interest Debentures, Series A, Due February 28, 2016, issued pursuant to the
Junior Subordinated Indenture, dated as of February 28, 1996, between the
Company and Wilmington Trust Company, as Trustee, and with all other series of
Junior Subordinated Debentures issued pursuant to the Indenture, and is
subordinate and subject in right of payments to the prior payment in full of all
Senior Debt, and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
- -
directs the Trustee on his behalf to take such actions as may be necessary or
appropriate to effectuate the subordination so provided and (c) appoints the
-
Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof,
by his acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Debt, whether now outstanding or hereafter incurred, and waives reliance
by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: October 30, 1996
ITT HARTFORD GROUP, INC.
By: /s/ J. Richard Garrett
----------------------------------
J. Richard Garrett
Vice President and Treasurer
Attest:
/s/ Michael O'Halloran
- ----------------------------------
Michael O'Halloran
Corporate Secretary
5
<PAGE>
[SPECIMEN]
[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities of the
Company, designated as its 8.35% Junior Subordinated Deferrable Interest
Debentures Due 2026 (herein called the "Securities"), issued and limited in
----------
aggregate principal amount to $515,463,925 under a Junior Subordinated
Indenture, dated as of October 30, 1996 (herein called the "Indenture"), between
---------
the Company and Wilmington Trust Company, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
-------
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All terms used in this Security that are defined in the Indenture or in
the Amended and Restated Trust Agreement, dated as of October 30, 1996 (the
"Trust Agreement"), among ITT Hartford Group, Inc. as Depositor, and the
- ----------------
Trustees named therein, for Hartford Capital II, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be.
At any time on or after October 30, 2001, the Company may, at its option,
subject to the terms and conditions of Article Eleven of the Indenture, redeem
this Security on any Interest Payment Date with respect thereto in whole at any
time or in part from time to time, without premium or penalty, at a redemption
price equal to the accrued and unpaid interest, including Additional Interest,
if any, to the date fixed for redemption, plus 100% of the principal amount
thereof.
The Company may, at its option, subject to the terms and conditions of
Article Eleven of the Indenture, redeem this Security on any Interest Payment
Date with respect thereto in whole at any time or in part from time to time,
without premium or penalty, at a redemption price equal to the accrued and
unpaid interest, including Additional Interest, if any, to the date fixed for
redemption, plus the greater of (a) the principal amount thereof and (b) an
- -
amount equal to the Discounted Remaining Fixed Amount Payments.
If a Special Event in respect of Hartford Capital II shall occur and be
continuing, the Company may, at its option, redeem this Security on any Interest
Payment Date falling within 90 days of the occurrence of such Special
<PAGE>
Event, in whole but not in part, subject to the provisions of Section 1107 and
the other provisions of Article Eleven of the Indenture. The redemption price
for any Security so redeemed shall be equal to 100% of the principal amount
thereof plus accrued and unpaid interest, including Additional Interest, if any,
to the date fixed for redemption.
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge and
defeasance at any time of the entire indebtedness of this Security upon
compliance by the Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities of
each series at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no pro vision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and
<PAGE>
unconditional, to pay the principal of (and premium, if any) and interest on
this Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained under Section 1002 of the Indenture
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
<PAGE>
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
This is one of the Securities referred to in the within-mentioned
Indenture.
WILIMINGTON TRUST COMPANY,
as Trustee
By: /s/ W. Chris Sponenberg
------------------------
Authorized Officer
<PAGE>
EXHIBIT 8
DEBEVOISE & PLIMPTON
875 Third Avenue
New York, New York 10022
October 30, 1996
ITT Hartford Group, Inc.
Hartford Plaza
Hartford, Connecticut 06115
Hartford Capital II
c/o ITT Hartford Group, Inc.
Hartford Plaza
Hartford, Connecticut 06115
ITT Hartford Group, Inc.
Hartford Capital II
Hartford Capital III
Hartford Capital IV
Registration Statement on Form S-3
Post-Effective Amendment No. 1 to
Form S-3 Registration Statement
-----------------------------------
Ladies and Gentlemen:
We have acted as special counsel to ITT Hartford Group, Inc., a
Delaware corporation ("ITT Hartford"), and Hartford Capital II, Hartford Capital
III and Hartford Capital IV, each a statutory business trust organized under the
laws of Delaware (each, a "Hartford Capital Trust"), in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"), of
<PAGE>
a Registration Statement and Post-Effective Amendment No. 1 to Registration
Statement No. 33-98014 on Form S-3 (Registration No. 333-12617) filed on
September 25, 1996 under the 1933 Act, as amended (the "Registration State
ment"), relating to the public offering of up to $1,250,000,000 in the aggregate
of (i) debt securities of ITT Hartford (ii) preferred stock of ITT Hartford,
- --
(iii) common stock of ITT Hartford, (iv) depositary shares of ITT Hartford, (v)
- ---- -- -
warrants of ITT Hartford, (vi) stock purchase units of ITT Hartford, (vii)
-- ---
junior subordinated deferrable interest debentures of ITT Hartford and (viii)
----
preferred securities representing preferred undivided beneficial interests in
the respective Hartford Capital Trusts. The proceeds of the offering of
preferred securities by a Hartford Capital Trust (together with proceeds from
the issuance of common interests in such Hartford Capital Trust) may be loaned
by such Hartford Capital Trust to ITT Hartford and such loan may be evidenced by
junior subordinated debentures of ITT Hartford, to be issued pursuant to a
Junior Subordinated Indenture entered into between ITT Hartford and Wilmington
Trust Company, as trustee. In addition, certain payment obligations of a
Hartford Capital Trust with respect to the preferred securities will be
guaranteed by a subordinated guarantee of ITT Hartford to the extent set forth
in such guarantee.
In so acting, we have reviewed the Certificate of Trust of Hartford
Capital II and the Trust Agreement of Hartford Capital II, each dated as of
October 25, 1995.
In connection with the issuance pursuant to the Registration Statement
of the preferred securities of Hartford Capital II (the "Preferred Securities"),
you have requested that we render the opinion set forth below. In rendering such
opinion, we have examined and relied upon the representations and warranties as
to factual matters made in or pursuant to the documents referred to above and
upon the originals, or copies certified or otherwise identified to our
satisfaction, of such records, documents, certificates or other instruments as
in our judgment are necessary or appropriate to enable us to render the opinion
expressed below. We have not, however, undertaken any independent investigation
of any factual matter set forth in any of the foregoing. We have also assumed
the due execution and delivery of the Amended and Restated Trust Agreement of
Hartford Capital II in the form of Exhibit 4.12 to the Registration Statement
(the "Amended Trust Agreement"), that the Amended Trust Agreement is valid and
enforceable in accordance with its terms and that Hartford Capital II will
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at all times comply with the Delaware Business Trust Act and the terms of the
Amended Trust Agreement.
Subject to the foregoing and the qualifications and limitations set
forth herein, (i) it is our opinion that Hartford Capital II will be classified
-
as a grantor trust and not as an association taxable as a corporation for
federal income tax purposes and (ii) the statements set forth in the Prospectus
--
Supplement dated October 25, 1996, relating to the issuance of the Preferred
Securities under the caption "Certain Federal Income Tax Considerations", to the
extent that such statements relate to matters of law or legal conclusion,
constitute the opinion of Debevoise & Plimpton.
This opinion is based on the relevant law in effect (or, in the case
of Proposed Treasury Regulations, proposed) and the relevant facts that exist as
of the date hereof. No assurance can be given that the law or facts will not
change, and we have not undertaken to advise you or any other person with
respect to any event subsequent to the date hereof. This opinion is addressed
solely to you and no other person may rely on it, provided that we hereby
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consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name under the caption "Certain Federal Income
Tax Considerations" and "Legal Opinions" in the Prospectus Supplement. In giving
such consent, we do not thereby concede that we are within the category of
persons whose consent is required under Section 7 of the 1933 Act or the Rules
and Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
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