EXHIBIT 4.5
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AMENDED AND RESTATED DECLARATION OF TRUST
AMONG
PROVIDENT COMPANIES, INC.
AS DEPOSITOR,
THE CHASE MANHATTAN BANK,
AS PROPERTY TRUSTEE,
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
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PROVIDENT FINANCING TRUST I
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DATED AS OF MARCH 16, 1998
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PROVIDENT FINANCING TRUST I
Certain Sections of this Declaration relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Declaration
Act Section Section
--------------- -----------
310 (a)(1).................................. 8.7
(a)(2).................................. 8.7
(a)(3).................................. 8.9
(a)(4).................................. 2.7 (a)(ii)
311 (a)(b).................................. 8.8
312 (a).................................. 5.7
(b).................................. 5.7
(c).................................. 5.7
313 (a).................................. 8.14(a)
(a)(4).................................. 8.14(b)
(b).................................. 8.14(b)
(c).................................. 10.8
(d).................................. 8.14(c)
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
315 (a).................................. 8.1(a),
(b).................................. 8.2, 10.8
(c).................................. 8.1(a
(d).................................. 8.1, 8.3
(e).................................. Not Applicable
316 (a).................................. Not Applicable
(a)(1)(A).................................. Not Applicable
(a)(1)(B).................................. Not Applicable
(a)(2).................................. Not Applicable
(b).................................. 5.14
(c).................................. 6.7
317 (a)(1).................................. Not Applicable
(a)(2).................................. Not Applicable
(b).................................. 5.9
318 (a).................................. 10.10
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Declaration.
TABLE OF CONTENTS
ARTICLE I INTERPRETATION AND DEFINITIONS............................................................. 1
SECTION 1.1. Interpretation..................................................................... 1
SECTION 1.2. Certain Definitions................................................................ 2
ARTICLE II CONTINUATION OF THE TRUST................................................................. 10
SECTION 2.1. Name............................................................................... 10
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business........................ 10
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.................... 10
SECTION 2.4. Issuance of the Preferred Securities............................................... 10
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of Debentures......... 10
SECTION 2.6. Declaration of Trust............................................................... 11
SECTION 2.7. Authorization to Enter into Certain Transactions................................... 11
SECTION 2.8. Assets of Trust.................................................................... 14
SECTION 2.9. Title to Trust Property............................................................ 14
ARTICLE III PAYMENT ACCOUNT.......................................................................... 15
SECTION 3.1. Payment Account.................................................................... 15
ARTICLE IV DISTRIBUTIONS; REDEMPTION................................................................. 15
SECTION 4.1. Distributions...................................................................... 15
SECTION 4.2. Redemption......................................................................... 16
SECTION 4.3. Subordination of Common Securities................................................. 18
SECTION 4.4. Payment Procedures................................................................. 18
SECTION 4.5. Tax Returns and Reports............................................................ 19
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust........................................ 19
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions............................. 19
SECTION 4.8. Liability of the Holder of Common Securities....................................... 19
ARTICLE V TRUST SECURITIES CERTIFICATES.............................................................. 19
SECTION 5.1. Initial Ownership.................................................................. 19
SECTION 5.2. The Trust Securities Certificates.................................................. 19
SECTION 5.3. Execution and Delivery of Trust Securities Certificates............................ 20
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities Certificates......... 20
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates................. 21
SECTION 5.6. Persons Deemed Holders............................................................. 21
SECTION 5.7. Access to List of Holders' Names and Addresses..................................... 21
SECTION 5.8. Maintenance of Office or Agency.................................................... 21
SECTION 5.9. Appointment of Paying Agent........................................................ 22
SECTION 5.10. Ownership of Common Securities by Depositor........................................ 22
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common Securities Certificate........ 23
SECTION 5.12. Notices to Clearing Agency......................................................... 23
SECTION 5.13. Definitive Preferred Securities Certificates....................................... 24
SECTION 5.14. Rights of Holders.................................................................. 24
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING......................................................... 26
SECTION 6.1. Limitations on Voting Rights....................................................... 26
SECTION 6.2. Notice of Meetings................................................................. 27
SECTION 6.3. Meetings of Holders of Preferred Securities........................................ 27
SECTION 6.4. Voting Rights...................................................................... 27
SECTION 6.5. Proxies, etc....................................................................... 28
SECTION 6.6. Holder Action by Written Consent................................................... 28
SECTION 6.7. Record Date for Voting and Other Purposes.......................................... 28
SECTION 6.8. Acts of Holders.................................................................... 28
SECTION 6.9. Inspection of Records.............................................................. 29
ARTICLE VII REPRESENTATIONS AND WARRANTIES............................................................ 29
SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee.... 29
SECTION 7.2. Representations and Warranties of Depositor........................................ 31
ARTICLE VIII THE TRUSTEES............................................................................. 31
SECTION 8.1. Certain Duties and Responsibilities................................................ 31
SECTION 8.2. Certain Notices.................................................................... 32
SECTION 8.3. Certain Rights of Property Trustee................................................. 33
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities............................. 34
SECTION 8.5. May Hold Securities................................................................ 35
SECTION 8.6. Compensation; Indemnity; Fees...................................................... 35
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees....................... 36
SECTION 8.8. Conflicting Interests.............................................................. 36
SECTION 8.9. Co-Trustees and Separate Trustee................................................... 36
SECTION 8.10. Resignation and Removal; Appointment of Successor.................................. 38
SECTION 8.11. Acceptance of Appointment by Successor............................................. 39
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business........................ 39
SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust....................... 40
SECTION 8.14. Reports by Property Trustee........................................................ 40
SECTION 8.15. Reports to the Property Trustee.................................................... 40
SECTION 8.16. Evidence of Compliance with Conditions Precedent................................... 40
SECTION 8.17. Number of Trustees................................................................. 41
SECTION 8.18. Delegation of Power................................................................ 41
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER........................................................ 41
SECTION 9.1. Dissolution Upon Expiration Date................................................... 41
SECTION 9.2. Early Termination.................................................................. 42
SECTION 9.3. Termination........................................................................ 42
SECTION 9.4. Liquidation........................................................................ 42
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust................ 44
ARTICLE X MISCELLANEOUS PROVISIONS.................................................................... 45
SECTION 10.1. Limitation of Rights of Holders.................................................... 45
SECTION 10.2. Amendment.......................................................................... 45
SECTION 10.3. Separability....................................................................... 46
SECTION 10.4. Governing Law...................................................................... 46
SECTION 10.5. Payments Due on Non-Business Day................................................... 46
SECTION 10.6. Successors......................................................................... 46
SECTION 10.7. Headings........................................................................... 47
SECTION 10.8. Reports, Notices and Demands....................................................... 47
SECTION 10.9. Agreement Not to Petition.......................................................... 47
SECTION 10.10. Application of Trust Indenture Act................................................. 48
SECTION 10.11. Acceptance of Terms of Declaration, Guarantee and Indenture........................ 48
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of March 16, 1998,
among (i) PROVIDENT COMPANIES, INC., a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) THE CHASE MANHATTAN BANK, a
banking corporation organized under the laws of the State of New York, as
property trustee, (in each such capacity, the "Property Trustee" and, in its
separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION, a national
banking association organized under the laws of the United States, as Delaware
trustee (the "Delaware Trustee"), (iv) Xxxxx X. Xxxx, an individual, and Xxxxx
X. Xxxxxx, Xx., an individual, each of whose address is c/o PROVIDENT COMPANIES,
INC., 0 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 (each an "Administrative
Trustee" and collectively the "Administrative Trustees") (the Property Trustee,
the Delaware Trustee and the Administrative Trustees, collectively, the
"Trustees") and (v) the several HOLDERS, as hereinafter defined.
W I T N E S S E T H :
WHEREAS, the Depositor, First Union Trust Company, National Association, as
Trustee, and Xxxxx X. Xxxx, as Trustee have heretofore duly declared and
established a business trust pursuant to the Delaware Business Trust Act by the
entering into that certain Declaration of Trust, dated as of April 10, 1997 (the
"Original Declaration"), and by the execution and filing by the First Union
Trust Company, National Association, as Trustee, and Xxxxx X. Xxxx, as Trustee,
with the Secretary of State of the State of Delaware of the Certificate of
Trust, filed on April 10, 1997, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Declaration 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 Property Trustee, the Delaware Trustee, and
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 parties
and for the benefit of the Holders, hereby amends and restates the Original
Declaration in its entirety and agrees as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation.
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For all purposes of this Declaration, 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
Declaration; and
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Declaration as a whole and not to any particular Article,
Section or other subdivision.
SECTION 1.2. Certain Definitions.
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For all purposes of this Declaration, the following terms shall have the
meanings assigned below:
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest paid
by the Depositor on a Like Amount of Debentures for such period.
"Additional Interest" has the meaning specified in Section 101 of the
Indenture.
"Additional Sums" has the meaning specified in Section 1013 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Declaration, solely in such
Person's capacity as Administrative Trustee of the Trust and not in such
Person's individual capacity, or such Administrative Trustee's successor in
interest in such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that the Trust shall not
be deemed an Affiliate of the Depositor. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Declaration.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises judging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
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property or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in furtherance
of any such action. "Bankruptcy Laws" has the meaning specified in Section
10.9.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, or (ii) a certificate signed by the authorized
officer or officers of the Depositor to whom the Board of Directors or a
committee thereof has delegated its authority and, in each case, delivered to
the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial interest
in the Preferred Securities Certificates, ownership and transfers of which shall
be made through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than
(a) a Saturday or Sunday,
(b) a legal holiday or day on which banking institutions in the City
of New York are authorized or required by law, regulation or executive
order to remain closed, or
(c) a day on which the Property Trustee's Corporate Trust Office or
the Corporate Trust Office of the Debenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust, the
Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
Depository Trust Company will be the initial Clearing Agency with respect to
Trust Securities Certificates.
"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.
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"Closing Date" has the meaning specified in the Underwriting Agreement,
which date is also the date of execution and delivery of this Declaration.
"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 Declaration such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Holder" means the holder of all or substantially all of the Common
Securities.
"Common Securities Certificate" means a certificate evidencing Common
Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Declaration, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located in New York, New
York, and (ii) when used with respect to the Debenture Trustee, the principal
office of the Debenture Trustee located in New York, New York.
"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 Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a banking corporation
organized under the laws of the State of New York, solely in its capacity as
Debenture Trustee of the Debentures and not in its individual capacity and any
successor thereto.
"Debentures" means the aggregate principal amount of the Depositor's 7.405%
Junior Subordinated Deferrable Interest Debentures, Series A, issued pursuant to
the Indenture.
"Declaration" means this Amended and Restated Declaration of Trust, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto and (ii) for all purposes
of this Declaration 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 Declaration and any such modification, amendment or supplement,
respectively.
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"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates representing Book-
Entry Preferred Securities Certificates as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (ss.) 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Declaration, solely in its capacity as Delaware Trustee of
the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Declaration.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the 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 Declaration (other than a
covenant or warranty a default in the performance or breach of which is
described 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 25% in aggregate Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(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 90 days thereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time and the rules and regulations promulgated thereunder by the
Commission.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and The Chase Manhattan Bank, as trustee, contemporaneously with the
execution and delivery of this Declaration, for the benefit of the holders of
the Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Business Trust Act; provided, however,
that for purposes of determining whether the Holders of the requisite amount of
Preferred Securities have voted on any matter provided for in this Declaration,
so long as Definitive Preferred Securities Certificates have not been issued,
the term "Holders" shall refer to the Owners.
"Indenture" means the Subordinated Debt Securities Indenture, dated as of
March 11, 1998, between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Investment Company Event"means the receipt by the Trust of an opinion of
counsel to the Depositor experienced in such matters (which may be counsel to
the Company) to the effect that, as a result of the occurrence of a change in
law or regulation or a written change (including any announced prospective
change) in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which change or prospective
change becomes effective or would become effective, as the case may be, on or
after the date of the issuance of the Preferred Securities.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (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 in
connection with a dissolution or liquidation of the Trust, Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Trust
Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
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"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a dissolution and liquidation
of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Depositor, and delivered to the appropriate
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or accounting officer
of the Depositor. Any Officers' Certificate delivered with respect to compliance
with a covenant or condition provided for in this Declaration 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 and who shall be reasonably
acceptable to the Property Trustee.
"Original Declaration" has the meaning specified in the recitals to this
Declaration.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Declaration, except:
(a) Trust Securities theretofore canceled by the Securities Registrar
or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for the payment or redemption of which money in
the necessary amount theretofore has been deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Declaration;
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(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Preferred Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, 5.11 and 5.13; provided, however, that in
determining whether the Holders of the
requisite aggregate Liquidation Amount of Outstanding Preferred Securities
have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Preferred Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that a Responsible Officer of such Trustee actually
knows to be so owned shall be so disregarded; and
(d) the foregoing shall not apply at any time when all the outstanding
Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Preferred Securities and
that the pledgee is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Holders in which all amounts paid in respect of the
Debentures will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Holders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, association 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 $1,000 and having the rights
provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing Preferred
Securities, substantially in the form attached as Exhibit E.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Declaration, solely in its capacity as Property Trustee of
the Trust and not in its individual
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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 redemption thereof; 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 thereof, plus accumulated and unpaid Distributions to the
Redemption Date, plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of Debentures,
allocated pro rata (based on Liquidation Amounts) among the Trust Securities.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" shall mean when used with respect to the Property
Trustee any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary Treasurer or Assistant Treasurer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge and
familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Trust" means the Delaware business trust heretofore created, and continued
hereby, and identified on the cover page to this Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Declaration is 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 Trust
under the Expense Agreement, (c) the rights of the Property Trustee under the
Guarantee, (d) any cash on deposit in, or owing to, the Payment Account and (e)
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 Declaration.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trustees" means, collectively, the Property Trustee, the Debenture
Trustee, the Delaware Trustee, and the Administrative Trustees.
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"Underwriting Agreement" means the Underwriting Agreement, dated as of
March 11, 1998, among the Trust, the Depositor and the several underwriters
named therein.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
----
The Trust continued hereby shall be known as "Provident Financing Trust I",
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 xxx and
be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
-----------------------------------------------------------
The name and address of the Delaware Trustee, with a principal place of
business in the State of Delaware, is First Union Trust Company, National
Association, One Xxxxxx Xxxxxx, 0xx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Holders and the Depositor. The principal executive office of the Trust is in
care of Provident Companies, Inc., 0 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000.
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.
---------------------------------------------------------------
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Declaration of the sum of $10, which constituted
the initial Trust Property. The Depositor shall pay organizational expenses of
the Trust as they arise or shall, upon request of any Trustee, promptly
reimburse such Trustee for any such expenses paid by such Trustee. The Depositor
shall make no claim upon the Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities.
------------------------------------
The Depositor, on behalf of the Trust and pursuant to the Original
Declaration, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Declaration, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Underwriters named in the Underwriting Agreement
Preferred Securities Certificates, registered in the name of the nominee of the
initial Clearing Agency, representing 300,000 Preferred Securities, having an
aggregate Liquidation Amount of $300,000,000 against receipt of the aggregate
purchase price of such Preferred Securities of $300,000,000 which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
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SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of
---------------------------------------------------------------
Debentures.
----------
Contemporaneously with the execution and delivery of this Declaration, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, representing 9,278 Common Securities,
having an aggregate Liquidation Amount of $9,278,000, against payment by the
Depositor of such amount, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee. Contemporaneously therewith, an
Administrative Trustee, 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 of $309,278,000, and, in satisfaction of the purchase
price for such Debentures, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $309,278,000 (being the sum of the amounts
delivered to the Property Trustee pursuant to (i) the second sentence of Section
2.4 and (ii) the first sentence of this Section 2.5).
SECTION 2.6. Declaration of Trust.
--------------------
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and to use the proceeds from such sale to acquire Debentures,
and (b) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust,
each to have all the rights, powers and duties of such Trustee 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 Trust and the Holders. 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. Notwithstanding anything in this Declaration to the
contrary, the Delaware Trustee shall not be entitled to exercise any powers or
authority (except to the extent required under the Delaware Business Trust Act),
nor shall the Delaware Trustee have any of the duties and responsibilities, of
the Trustees collectively, the Property Trustee or the Administrative Trustees
set forth herein. Notwithstanding any provision to the contrary in this
Declaration or elsewhere, 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(a) of the Delaware Business Trust Act and (except for such duties
of the Delaware Trustee as may be expressly set forth herein) the Delaware
Trustee (both as such and in its individual capacity) shall have no duties or
liabilities to any Person under this Declaration or otherwise in respect of or
in connection with the Trust, the Trust Securities, or its serving as a trustee
of the Trust.
SECTION 2.7. Authorization to Enter into Certain Transactions.
------------------------------------------------
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Declaration. Subject to the limitations set forth in Section
2.7(b), and in accordance with the following clauses (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 Declaration,
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:
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(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 Declaration
as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Holders in accordance with this Declaration;
(F) the appointment of a Paying Agent and Securities Registrar in
accordance with this Declaration;
(G) registering transfer of the Trust Securities in accordance
with this Declaration;
(H) to the extent provided in this Declaration, the winding up of
the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust (either acting alone or together with any or
all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Declaration; and
(J) the taking of any action incidental or convenient to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
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Declaration for the benefit of the Holders (without consideration of
the effect of any such action on any particular Holder).
(ii) As among the Trustees, the Property Trustee shall have the power,
duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to
the Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Holders in
accordance with this Declaration;
(G) the distribution of the Trust Property in accordance with the
terms of this Declaration;
(H) to the extent provided in this Declaration, the winding up of
the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph (b),
(c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking of
any action incidental or convenient 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 Declaration and protect and conserve
the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder); and
(J) except as otherwise provided in this Section 2.7(a)(ii), the
Property Trustee shall have none of the duties, liabilities, powers or
the authority of the Administrative Trustees set forth in Section
2.7(a)(i).
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(b) So long as this Declaration remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Declaration, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Holders, except as expressly
provided herein, (iii) take any action that would cause the Trust to become
taxable as a corporation for United States federal income tax purposes, (iv)
incur any indebtedness for borrowed money or issue any other debt or (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property. The 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 Holders in their capacity as
Holders.
(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
Declaration are hereby ratified and confirmed in all respects): (i) the
preparation and filing by the Trust with the Commission and the execution on
behalf of the Trust of a registration statement on the appropriate form in
relation to the Preferred Securities, including any amendments thereto; (ii) the
determination of the States in which to take appropriate action to qualify or
register for sale all or part of the Preferred Securities and the determination
of any and all such acts, other than actions which must be taken by or on behalf
of the Trust, and the advice to the Trustees of actions they must take on behalf
of the Trust, and the preparation for execution and filing of 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) the preparation for filing by the Trust and execution on
behalf of the Trust of 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) the preparation for filing
by the Trust with the Commission and the execution on behalf of the Trust of a
registration statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) or 12(g) of the Exchange Act, including any
amendments thereto; (v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and (vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the 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 1940 Act, or to be classified as an
association taxable as a corporation for United States federal income tax
purposes and so that the Debentures will be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Declaration,
that each of the Depositor and any Administrative Trustee determines in its
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.
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SECTION 2.8. Assets of Trust.
---------------
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
-----------------------
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Holders in accordance
with this Declaration.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
---------------
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Declaration. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Holders and for distribution as herein provided, including (and subject to)
any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds in respect of, the Debentures.
(c) Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
-------------
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Amounts) will be made
on the Trust Securities at the rate and on the dates that payments of interest
(including Additional Interest) are made on the Debentures. Accordingly:
(i) 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 March 16,
1998, and, except to the extent that the Depositor exercises its right to
defer the payment of interest on the Debentures in accordance with the
Indenture, shall be payable semi-
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annually in arrears on March 15 and September 15 of each year, commencing
on September 15, 1998. If any date on which a Distribution otherwise would
be payable on the Trust Securities is not a Business Day, then the payment
of such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay), or, if such Business Day falls in the next calendar year, on
the immediately preceding Business Day, in each case, with the same force
and effect as if made on such date (each date on which Distributions are
payable in accordance with this Section 4.1(a), a "Distribution Date").
(ii) Assuming that payments of interest on the Debentures are made
when due (and before giving effect to Additional Amounts, if applicable),
Distributions on the Trust Securities shall be payable at a rate of 7.405%
per annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any full period shall be computed on the basis of
a 360-day year of twelve 30-day months. 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.
(iii) 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.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date for such
Distribution 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 for a Distribution Date
shall be the date 15 days prior to such Distribution Date.
SECTION 4.2. Redemption.
----------
(a) On each Debenture Redemption Date and upon the stated maturity of the
Debentures, the Trust will be required to redeem or pay off a Like Amount of
Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
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(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the aggregate Liquidation Amount of the
Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price in respect of
each such Trust Security to be redeemed will be due and that Distributions
thereon will cease to accrue on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be due 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 City time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, so long as the
Preferred Securities are in book-entry-only form, irrevocably deposit with the
Clearing Agency for the Preferred Securities funds sufficient to pay the
applicable Redemption Price. If the Preferred Securities are no longer in book-
entry-only form, the Property Trustee, subject to Section 4.2(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, any
Distribution the Distribution Date for which shall occur on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register on the relevant record date for such Distribution Date. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Holders of Trust Securities so called for
redemption will cease with respect to such Trust Securities, except the right of
such Holders to receive the Redemption Price therefor and any Distribution
thereon the Distribution Date for which shall occur on or prior to the
Redemption Date, but without interest, and such Trust Securities will cease to
be outstanding. In the event that any date on which any Redemption Price is
payable is not a Business Day, then payment of the Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), or, if such
Business Day falls in the next calendar year, 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 for any Trust Securities
called for redemption is improperly withheld or refused and not paid either by
the Trust or by the Depositor pursuant to the Guarantee, Distributions on such
Trust Securities will continue to accumulate, at the then applicable rate, from
the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price for Trust Securities shall be made to
the recordholders thereof as they appear on the Securities Register on the
relevant record date for the Redemption Date, which shall be one Business Day
prior to such Redemption Date; provided, however, that in the event that the
Preferred Securities do not remain in book-entry-only form,
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the relevant record date for a Redemption Date shall be the date 15 days prior
to such Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated pro
rata (based on Liquidation Amounts) among the Common Securities and the
Preferred Securities. The particular Preferred Securities to be redeemed shall
be selected pro rata (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
(including, without limitation, by lot) as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or an integral multiple of $1,000 in excess thereof)
of the Liquidation Amount of Preferred Securities of a denomination larger than
$1,000. 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 Declaration, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or to
be redeemed only in part, to the portion of the Liquidation Amount of Preferred
Securities that has been or is to be redeemed.
SECTION 4.3. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price of, the Trust Securities, as applicable, shall be
made, subject to Section 4.2(f), pro rata (based on Liquidation Amounts) among
the Common Securities and the Preferred Securities; provided, however, that if
on any Distribution Date or Redemption Date any Event of Default resulting from
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 the Redemption Price of, Preferred
Securities then due.
(b) In the event of the occurrence of any Event of Default resulting from
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 Declaration 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 Declaration 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.
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SECTION 4.4. Payment Procedures.
------------------
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to such Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency
on the relevant 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 Holder.
SECTION 4.5. Tax Returns and Reports.
-----------------------
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. 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 Holder the appropriate Internal Revenue Service form 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 and reports 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 Holders under the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
-------------------------------------------
Upon receipt under the Debentures of Additional Sums, 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 4.7. Payments under Indenture or Pursuant to Direct Actions.
------------------------------------------------------
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or an Owner with
respect to the Holder's Preferred Securities) has directly received pursuant to
Section 508 of the Indenture or Section 5.14 of this Declaration.
SECTION 4.8. Liability of the Holder of Common Securities.
--------------------------------------------
The Holder of the Common Securities shall be liable for the debts and
obligations of the Trust as set forth in the Expense Agreement.
-19-
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
-----------------
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates.
---------------------------------
The Preferred Securities Certificates shall be issued in minimum
denominations of $1,000 Liquidation Amount and integral multiples of $1,000 in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $1,000 Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by manual
or facsimile signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Declaration, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
-------------------------------------------------------
At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities
-------------------------------------------------------------
Certificates.
------------
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register"), in which the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar. The provisions of Sections 8.1, 8.3 and 8.6 shall apply to
the Bank also in its role as Securities Registrar, for so long as the Bank shall
act as Securities Registrar.
-20-
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required to register the transfer of
any Preferred Securities that have been called for redemption. At the option of
a Holder, Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.8.
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 an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be canceled and subsequently disposed of by an
Administrative Trustee or Securities Registrar in accordance with such Person's
customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
The Property Trustee shall not be required to ensure or verify compliance
with securities laws, including the Securities Act, Exchange Act and 1940 Act,
in connection with transfers and exchanges of Preferred Securities Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
-----------------------------------------------------
Certificates.
------------
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a protected purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other 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 Trust Property, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate shall be found at
any time.
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SECTION 5.6. Persons Deemed Holders.
----------------------
The Trustees or the Securities Registrar shall treat the Person in whose
name any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and neither the
Trustees nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. Access to List of Holders' Names and Addresses.
----------------------------------------------
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, or any of the Trustees, accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.
SECTION 5.8. Maintenance of Office or Agency.
-------------------------------
The Administrative Trustees shall maintain 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 Chase Manhattan Bank, 000 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Corporate Trust
Administration, as its principal corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and to
the Holders of any change in the location of the Securities Register or any such
office or agency.
SECTION 5.9. Appointment of Paying Agent.
---------------------------
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the power
to receive 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 Declaration in any material respect. The Paying Agent shall initially
be the Bank, and any co- paying agent chosen by the Bank, and acceptable to the
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the event
that the Bank shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Administrative Trustees
shall appoint a successor that is acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Holders in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 shall apply to
the Bank also in its role as
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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 Declaration to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor.
-------------------------------------------
At the Closing Date, the Depositor shall acquire and retain beneficial and
record ownership of the Common Securities. To the fullest extent permitted by
law, other than a transfer to an Affiliate or in connection with a consolidation
or merger of the Depositor into another Person, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to 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 OTHER THAN IN ACCORDANCE WITH
SECTION 5.10 OF THE DECLARATION".
SECTION 5.11. Book-Entry Preferred Securities Certificates; Common Securities
---------------------------------------------------------------
Certificate.
-----------
(a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Preferred Securities Certificate representing such Owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Declaration relating
to the Book-Entry Preferred Securities Certificates (including the payment
of the Liquidation Amount of and Distributions on the Preferred Securities
evidenced by Book-Entry Preferred Securities Certificates and the giving of
instructions or directions to Owners of Preferred Securities evidenced by
Book-Entry Preferred Securities Certificates) as the sole Holder of
Preferred Securities and shall have no obligations to the Owners thereof;
(ii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Declaration, the provisions of this
Section 5.11 shall control; and
(iii) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants
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and receive and transmit payments on the Preferred Securities to such
Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency.
--------------------------
To the extent that a notice or other communication to the Owners is
required under this Declaration, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
--------------------------------------------
If (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) there shall have occurred and be continuing
an Event of Default, then an Administrative Trustee shall notify the Clearing
Agency and the Clearing Agency shall notify all Owners of Preferred Securities
Certificates and the other Trustees of the occurrence of any such event and of
the availability of the Definitive Preferred Securities Certificates to Owners
of such class or classes, as applicable, requesting the same. Upon surrender to
the Property Trustee or Registrar 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 fully 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
Holders. The Definitive Preferred Securities Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.
SECTION 5.14. Rights of Holders.
-----------------
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial 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 Declaration. The Trust Securities shall have no
preemptive or similar rights. When issued and delivered to Holders of Preferred
Securities against payment of the purchase price therefor, the Preferred
Securities will be fully paid and nonassessable undivided beneficial interests
in the Trust Property. The Holders, in their capacities as such, shall be
entitled to the same limitation of personal liability extended
-24-
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in aggregate principal amount of the outstanding Debentures fail
to declare the principal of all of the Debentures to be immediately due, the
Holders of at least 25% in aggregate Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due, provided that the payment of principal and interest on
such Debentures shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of at least a majority in aggregate Liquidation Amount of
the Preferred Securities, by written notice to the Property Trustee, the
Depositor and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest) on all of the Debentures,
(B) the principal of (and premium, if any, on) any Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures,
and
(C) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other than
the non- payment of the principal of the Debentures which has become due
solely by such acceleration, have been cured or waived as provided in
Section 513 of the Indenture.
The Holders of at least a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Debenture. No such rescission shall affect any subsequent default or impair any
right consequent thereon.
-25-
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of Preferred
Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Declaration and
the Indenture, upon a Debenture Event of Default specified in Section 501.1 or
501.2 of the Indenture, any Holder of Preferred Securities shall have the right
to institute a proceeding directly against the Depositor, pursuant to Section
508 of the Indenture, for enforcement of payment to such Holder of the principal
amount of or interest on Debentures having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c),
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to holders of, or in respect of, Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
----------------------------
(a) Except as provided in this Section 6.1, in Sections 5.14, 8.10 and 10.2
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
Holders 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 or 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
-26-
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 Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of Preferred Securities of any
notice of default received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of Holders of
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 such action shall not cause the Trust to be
classified as an association taxable as a corporation for United States federal
income tax purposes.
(c) If any proposed amendment to the Declaration provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to this Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Declaration, 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. Notwithstanding any other
provision of this Declaration, no amendment to this Declaration may be made if,
as a result of such amendment, it would cause the Trust to be classified as an
association taxable as a corporation for United States federal income tax
purposes.
SECTION 6.2. Notice of Meetings.
------------------
Notice of all meetings of Holders of Preferred Securities, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each such Holder at such Holder's address as it
appears in the Securities Register as of the record date for such meeting. Such
notice shall be sent, first-class mail, at least 15 days and not more than 90
days before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Holders of Preferred Securities.
-------------------------------------------
No annual meeting of Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of Holders of Preferred Securities to
vote on any matter upon the written request of the Holders of record of at least
25% of the aggregate Liquidation Amount of Outstanding Preferred Securities and
the Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Securities to vote on any
matters as to which Holders of Preferred Securities are entitled to vote.
Holders of at least 50% of the Liquidation Amount of Outstanding Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of Holders of Preferred Securities.
-27-
If a quorum is present at a meeting, an affirmative vote by the Holders of
record present, in person or by proxy, holding at least a majority of the
Liquidation Amount of Outstanding Preferred Securities held by the Holders of
record present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of Preferred Securities, unless this Declaration
requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
-------------
In respect of any matter as to which a Holder is entitled to vote, such
Holder shall be entitled to one vote for each $1,000 of Liquidation Amount Trust
Securities held of record by such Holder.
SECTION 6.5. Proxies, etc.
------------
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Administrative Trustees, or with such other officer
or agent of the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
of record shall be entitled to vote. When Trust Securities are held jointly by
several Persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Holder shall be deemed valid unless challenged at or prior
to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.6. Holder Action by Written Consent.
--------------------------------
Any action which may be taken by Holders at a meeting may be taken without
a meeting if Holders holding a majority of the aggregate Liquidation Amount of
the Outstanding Trust Securities entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any express provision of
this Declaration) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
-----------------------------------------
For the purpose of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Declaration, or for the purpose of any other
action, the Administrative Trustees or Property Trustee may from time to time
fix a date, not more than 90 days prior to the date of any meeting of Holders or
the payment of a Distribution or other action, as the case may be, as a record
date for the determination of the identity of the Holders of record for such
purposes.
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SECTION 6.8. Acts of Holders.
---------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Declaration to be given, made or
taken by Holders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders 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 and the
Property Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders 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 Declaration and (subject to Section 8.1)
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 to 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.
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 Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustees or the
Trust in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Holders and the Administrative
Trustees or among such Holders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee under this Article VI,
then the determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
SECTION 6.9. Inspection of Records.
---------------------
Upon reasonable prior written notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by
Holders during normal business hours for any purpose reasonably related to such
Holder's interest as a Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the
--------------------------------------------------------------
Delaware Trustee.
----------------
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself alone, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a banking corporation, duly organized, validly
existing and in good standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Declaration and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Declaration;
(c) the Delaware Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Declaration and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Declaration;
(e) this Declaration has been duly authorized, executed and delivered by
the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance of this Declaration has been
duly authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and does not require any approval of
stockholders of the Property Trustee or the Delaware Trustee and such execution,
delivery and performance will not (i) violate the Charter or By-laws of the
Property Trustee or the Delaware Trustee, (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 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, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Declaration nor the consummation of any
of the transactions by the
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Property Trustee or the Delaware Trustee (as appropriate in context)
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal law governing the
banking, trust or general powers of the Property Trustee or the Delaware
Trustee, as the case may be, under the laws of the United States or the State of
Delaware (other than the filing of appropriate certificates in accordance with
the Delaware Business Trust Act);
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Declaration.
SECTION 7.2. Representations and Warranties of Depositor.
-------------------------------------------
The Depositor hereby represents and warrants for the benefit of the Holders
that the Trust Securities Certificates issued on the Closing Date on behalf of
the Trust have been duly authorized and will have been, duly and validly
executed, issued and delivered by an Administrative Trustee pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Declaration and the Holders will be, as of each such date, entitled to the
benefits of this Declaration.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Trustees shall be as expressly
provided by this Declaration and, in the case of the Property Trustee, by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Declaration shall require the Trustees to expend or risk their own funds or
otherwise to 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
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section
8.1.
(b) No provision in this Declaration shall be construed to release an
Administrative Trustee from liability for his own gross negligent action, his
own gross negligent failure to act, or his own willful misconduct. To the extent
that, at law or in equity, an Administrative Trustee has duties (including
fiduciary duties) to the Trust or to the Holders, and liabilities relating
thereto, such Administrative Trustee shall not be liable to the Trust or to any
Holder for such Trustee's good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of the Administrative
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Trustees otherwise existing at law or in equity, are agreed by the Depositor and
the Holders to replace such other duties and liabilities of the Administrative
Trustees.
(c) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.1(c)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Declaration or, in the case of the Property Trustee, in the Trust Indenture
Act.
(d) No provision of this Declaration 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 Declaration;
(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 Declaration and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Declaration, nor shall the Property Trustee be
liable for the default or misconduct of the Administrative Trustees or the
Depositor.
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SECTION 8.2. Certain Notices.
---------------
Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders, 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 defer the payment of interest on the Debentures
pursuant to the Indenture, the Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, written notice of such
exercise to the Holders and the Property Trustee, unless such exercise shall
have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
----------------------------------
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) if (i) in performing its duties under this Declaration the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Declaration the Property Trustee finds
the same ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Preferred Holders are
entitled to vote under the terms of this Declaration, the Property Trustee shall
deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the Property Trustee shall
take such action, or refrain from taking such action, as the Property Trustee
shall be instructed in writing to take, or to refrain from taking, by the
Depositor; provided, 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 Declaration as it shall deem advisable and in the best
interests of the Holders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Declaration shall be sufficiently evidenced by an Officers'
Certificate;
(d) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate which, upon
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receipt of such request, shall be promptly delivered by the Depositor or the
Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property Trustee shall
have the right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Declaration at the request or
direction of any of the Holders pursuant to this Declaration, unless such
Holders shall have offered to the Property Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Holders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents,
attorneys, custodians or nominees provided that the Property Trustee shall not
be responsible for any misconduct or negligence or recklessness on the part of
any agent, attorney, custodian or nominee appointed with due care by it
hereunder;
(j) whenever in the administration of this Declaration 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 fully protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Declaration.
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No provision of this Declaration 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. The Delaware Trustee shall have the same rights and
benefits as the Property Trustee under this paragraph and paragraphs (a) through
(k) of this Section.
SECTION 8.4. 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 8.5. May Hold Securities.
-------------------
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6. 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
Declaration (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify, defend
and hold harmless (i) each Trustee in its individual capacity, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates, (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason of or in
connection with the creation, existence, operation or termination of the Trust
or any act or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by this Declaration, except that no Indemnified Person shall be entitled
to be indemnified
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pursuant to this Section 8.6 in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Declaration.
No Trustee may claim any lien or charge on any Trust Property (except for
funds not held in trust for the payment of principal of, or premium if any, or
interest on particular securities or any coupons) as a result of any amount due
pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property Trustee, subject
to Section 8.8) may engage in or possess an interest in other business ventures
of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. Neither the Depositor, nor any Trustee,
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.7. 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 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 under the Delaware Business Trust Act that
the Trust have a trustee in the State of Delaware, as the same now exists or as
may hereafter be amended, and that shall act through one or more persons
authorized to bind such entity.
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SECTION 8.8. 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 Declaration.
SECTION 8.9. Co-Trustees and Separate Trustee.
--------------------------------
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for
such purpose join with the Administrative Trustees in the execution, delivery,
and performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default shall have occurred and be
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 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
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perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act or
omission 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 8.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Holders. If the
instrument of acceptance by the successor Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within 30 days after the giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.
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 Holder. 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
Holder 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 Holder, by Act of the Common Holder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the retiring Relevant Trustee shall comply with the applicable
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requirements of Section 8.11. 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 shall have occurred and be continuing, the Preferred
Holders, by Act of the Holders of a majority in Liquidation Amount of the
Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Relevant Trustee shall comply with the applicable requirements of
Section 8.11. 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 Holder by Act of
the Common Holder delivered to the Administrative Trustee shall promptly appoint
a successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Holder or the Preferred Holders and accepted appointment in the
manner required by Section 8.11, any Holder who has been a Holder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal
of a Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 10.8 and shall give notice to the Depositor. 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 Declaration,
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 the 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 or Delaware Trustee, as the case may be, set forth
in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Relevant Trustee, 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 Declaration as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees. Upon the execution and delivery of such
amendment, the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee and upon payment in
full of all undisputed amounts then due and owing to such retiring Relevant
Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant
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Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust.
------------------------------------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
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Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.14. Reports by Property Trustee.
---------------------------
Within 60 days after March 15 of each year commencing with the first
March 15 after the first issuance of Trust Securities pursuant to this
Declaration, the Trustee shall transmit by mail to all Holders of Trust
Securities as provided in TIA Section 313(c) a brief report dated as of such
March 15 if and to the extent required by TIA Section 313(a).
SECTION 8.15. Reports to the Property Trustee.
-------------------------------
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314 (c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
SECTION 8.17. Number of Trustees.
------------------
(a) The number of Trustees shall be four, provided that the Holder of all
the Outstanding Common Securities by written instrument may increase or decrease
the number of Administrative Trustees. The Property Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration.
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SECTION 8.18. Delegation of Power.
-------------------
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number 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 this Declaration, as set forth herein.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
--------------------------------
Unless earlier dissolved, the Trust shall automatically dissolve 45 years
from the Closing Date (the "Expiration Date").
SECTION 9.2. Early Termination.
-----------------
The Trust shall dissolve upon the first to occur of any of the following
events (an "Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Holder of the Common Securities;
(b) the written direction to the Property Trustee from the Holder of the
Common Securities at any time to dissolve the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, distribute
Debentures to Holders in exchange for the Preferred Securities; (which direction
is optional and wholly within the discretion of the Holder of the Common
Securities);
(c) the redemption of all of the Preferred Securities in connection with
the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. Termination.
-----------
The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following:
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(a) the distribution by the Property Trustee to Holders upon the
liquidation of the Trust pursuant to Section 9.4, or upon the redemption of all
of the Trust Securities pursuant to Section 4.2, 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 Holders.
SECTION 9.4. Liquidation.
-----------
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs, or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Holder a Like Amount of Debentures, subject
to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee
by first-class mail, postage prepaid mailed not later than 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 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Unless Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and the distribution of Debentures to Holders, 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) Unless Section 9.2(c) or 9.4(d) applies, after the Liquidation Date (i)
the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of 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 best efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange, interdealer quotation system or self-
regulatory organization 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
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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 Holders holding Trust Securities will
cease, except the right of such Holders to receive Debentures upon surrender of
Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, then the Trust Property
shall be liquidated, and the Trust shall be dissolved and wound up by the
Property Trustee in such manner as the Property Trustee determines subject to
applicable law. In such event, on the date of the dissolution of the Trust,
Holders will be entitled to receive out of the assets of the Trust available for
distribution to Holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to the Liquidation Amount
per Trust Security plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid pro rata based upon
Liquidation Amounts. The Holder of the Outstanding Common Securities will be
entitled to receive Liquidation Distributions upon any such dissolution pro
rata, based upon Liquidation Amount, with Holders of Preferred Securities,
except that, if any Debenture Event of Default shall have occurred and be
continuing at the time of payment of the Liquidation Distribution, the Preferred
Securities shall have a priority over the Common Securities with respect to
payment of any amount of Liquidation Distribution.
(e) Following the Expiration Date or an Early Termination Event and after
the completion of the winding up of the affairs of the Trust pursuant to this
Section 9.4, one of the Trustees shall file a certificate of cancellation with
the Delaware Secretary of State.
SECTION 9.5. 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 Person, except pursuant to this Article IX.
At the request of the Holder of the Common Securities, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, 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 ("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 traded, 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 or traded,
if any, (iv) such merger, consolidation, amalgamation,
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replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor such successor entity will be required
to register as an investment company under the 1940 Act and (viii) the Depositor
owns all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of all Outstanding Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other Person or permit any other Person 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 Person to be classified as an association taxable as a corporation for
United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
-------------------------------
The death or incapacity, or the dissolution, liquidation, termination, or
the bankruptcy of any Person having an interest, beneficial or otherwise, in
Trust Securities shall not operate to terminate this Declaration, nor entitle
the legal representatives, successors or heirs of such person or any Holder for
such person, to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements contemplated hereby,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
SECTION 10.2. Amendment.
---------
(a) This Declaration may be amended from time to time by the Property
Trustee, the Administrative Trustees and the Holder of the Common Securities,
without the consent of any Holders, (i) to cure any ambiguity, correct or
supplement any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Declaration, which shall not be inconsistent with
the other provisions of this Declaration, or (ii) to modify, eliminate or add to
any provisions of this Declaration to such extent as shall be necessary to
ensure that the Trust will not be classified for United States federal income
tax purposes as an association taxable as a corporation at any times that any
Trust Securities are outstanding or to ensure that the Trust will not be
required to register as an investment company under the 1940 Act; provided,
however, that in the case of
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clause (i), such action shall not adversely affect in any material respect the
interests of any Holder, and any such amendments of this Declaration shall
become effective when notice thereof is given to the Holders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Declaration may be amended by the Trustees and the Holder of the Common
Securities with (i) the consent of Holders representing not less than a majority
Liquidation Amount of the Outstanding Trust Securities and (ii) receipt by the
Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not cause the Trust to be classified as an association taxable as a
corporation for United States federal income tax purposes or affect 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
Declaration, without the consent of each affected Holder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Declaration may not
be amended to (i) change the amount or timing of any Distribution or otherwise
adversely affect the amount of any Distribution required to be made as of a
specified date or (ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after such date; notwithstanding any other
provision herein, without the unanimous consent of the Holders (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this paragraph (c)
of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Declaration, no Trustee
shall enter into or consent to any amendment to this Declaration which would
cause the Trust to be classified as an association taxable as a corporation for
United States federal income tax purposes or fail or cease to qualify for the
exemption from status of an investment company under the 1940 Act.
(e) Notwithstanding anything in this Declaration to the contrary, without
the consent of the Depositor, this Declaration may not be amended in a manner
which imposes any additional obligation or liability on the Depositor.
(f) If any amendment to this Declaration 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 Declaration which affects its own rights,
duties or immunities under this Declaration. The Property Trustee shall be
entitled to receive an Opinion of Counsel and an Officers' Certificate stating
that any amendment to this Declaration is in compliance with this Declaration.
SECTION 10.3. Separability.
------------
If any provision in this Declaration 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.
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SECTION 10.4. Governing Law.
-------------
THIS DECLARATION AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE
TRUST AND THE TRUSTEES WITH RESPECT TO THIS DECLARATION AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE.
SECTION 10.5. Payments Due on Non-Business Day.
--------------------------------
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), 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 10.6. Successors.
----------
This Declaration 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 obligations hereunder, the Depositor shall not assign its
obligations hereunder (any purported assignment in contravention of this Section
10.6 being null and void).
SECTION 10.7. Headings.
--------
The Article and Section headings are for convenience only and shall not
affect the construction of this Declaration.
SECTION 10.8. Reports, Notices and Demands.
----------------------------
Any report, notice, demand or other communication which by any provision of
this Declaration is required or permitted to be given or served to or upon any
Holder or the Depositor may be given or served in writing by deposit thereof,
first-class postage prepaid, in the United States mail, hand delivery or
facsimile transmission, in each case, addressed, (a) in the case of a Holder of
Preferred Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Common Holder or
the Depositor, to Provident Companies, Inc., 0 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: General Counsel, facsimile no.: (000) 000-0000. Such
notice, demand or other communication to or upon a Holder shall be deemed to
have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission.
Any notice, demand or other communication which by any provision of this
Declaration is required or permitted to be given or served to or upon the Trust,
the Property Trustee, the Delaware 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 The Chase Manhattan
Bank, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration; (b) with respect to the Delaware Trustee, to
First
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Xxxxx Xxxxx Company, National Association One Xxxxxx Square, 000 Xxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration; and (c) with respect to the Administrative Trustees, to them at
the address above for notices to the Depositor, marked "Attention Administrative
Trustees of Provident Financing Trust I " 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.
SECTION 10.9. Agreement Not to Petition.
-------------------------
Each of the Trustees and the Depositor agree for the benefit of the Holders
that, until at least one year and one day after the Trust has been terminated in
accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, 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 10.9, the Property Trustee
agrees, for the benefit of Holders, that at the expense of the Depositor, it
shall file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Trust or the commencement
of such action and raise the defense that the Depositor has agreed in writing
not to take such action and should be 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 10.9 shall survive the termination of this
Declaration.
SECTION 10.10. Application of Trust Indenture Act.
----------------------------------
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Declaration by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Declaration 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 Declaration as so modified or
excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Trust Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 10.11. Acceptance of Terms of Declaration, Guarantee and Indenture.
-----------------------------------------------------------
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL
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CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS DECLARATION AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE
TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
DECLARATION SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH HOLDER AND SUCH OTHERS.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated
Declaration as of the date first above written.
PROVIDENT COMPANIES, INC., as Depositor
By: /s/ Xxxxx X. Xxxxxx, Xx.
-----------------------------------
Xxxxx X. Xxxxxx, Xx.
Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK,
as Property Trustee
By: /s/ Xxxx X. Xxxx
-----------------------------------
Xxxx X. Xxxx
Senior Trust Officer
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
as Delaware Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Xxxxx X. Xxxx, as Administrative Trustee
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Xxxxx X. Xxxxxx, Xx., as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
--------------------
OF
--
PROVIDENT FINANCING TRUST I
---------------------------
THIS CERTIFICATE OF TRUST of Provident Financing Trust I (the "Trust"),
dated April 10, 1997, 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. ss. 3801 et seq.).
1. Name. The name of the business trust being formed hereby is PROVIDENT
FINANCING TRUST I.
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 FIRST
UNION TRUST COMPANY, NATIONAL ASSOCIATION, One Xxxxxx Square, 000 Xxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration.
3. Effective Date. This Certificate of Trust shall be effective as of
April 10, 1997.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
duly executed this Certificate of Trust.
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION
not in its individual capacity,
but solely as Trustee
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Vice President
XXXXX X. XXXX,
not in her individual capacity,
but solely as Trustee
/s/ Xxxxx X. Xxxx
-----------------
EXHIBIT B
The Depository Trust Company,
00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000 __________, 1998
Attention: _______________
General Counsel's Office
Re: Provident Financing Trust I ____% Cumulative Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to the
issuance and deposit with The Depository Trust Company ("DTC") of the Provident
Financing Trust I ____% Cumulative Trust Preferred Securities (the "Preferred
Securities"), of Provident Financing Trust I, a Delaware business trust (the
"Issuer"), created and continued pursuant to an Amended and Restated Declaration
of Trust between PROVIDENT COMPANIES, INC. ("Provident"), The Chase Manhattan
Bank, as Property Trustee, First Union Trust Company, National Association, as
Delaware Trustee, the Administrative Trustees named therein and the holders,
from time to time, of undivided beneficial interests in the assets of the trust.
The payment of distributions on the Preferred Securities, and payments due upon
liquidation of Issuer or redemption of the Preferred Securities, to the extent
the Issuer has funds available for the payment thereof are guaranteed by
Provident to the extent set forth in a Guarantee Agreement dated February __,
1998 by Provident with respect to the Preferred Securities. Provident and the
Issuer propose to sell the Preferred Securities to certain Underwriters (the
"Underwriters") pursuant to an Underwriting Agreement dated February __, 1998 by
and among the Underwriters, the Issuer and Provident dated February __, 1998,
and the Underwriters wish to take delivery of the Preferred Securities through
DTC. The Chase Manhattan Bank is acting as transfer agent and registrar with
respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for deposit at
DTC, and to act in accordance with DTC's rules with respect to the Preferred
Securities, the Issuer, the Transfer Agent and Registrar and DTC agree among
each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to the
Underwriters, which is expected to occur on or about __________ __, ____, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of
____________ Preferred Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Declaration of Trust provides for the voting by
holders of the Preferred Securities under certain limited circumstances (with no
provision for revocation of consents or votes by subsequent holders). The Issuer
shall establish a record date for such purposes and shall, to the extent
possible, give DTC notice of such record date not less than 15 calendar days in
advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of rights
with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-
1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
The Issuer or the Transfer Agent and Registrar shall confirm DTC's receipt
of such telecopy by telephoning the Dividend Department at (000) 000-0000.
5. In the event of a redemption by the Issuer of the Preferred Securities,
notice specifying the terms of the redemption and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC
not less than 30 calendar days prior to
-2-
such event by a secure means in the manner set forth in paragraph 4. Such
redemption notice shall be sent to DTC's Call Notification Department at (516)
227-4164 or (000) 000-0000, and receipt of such notice shall be confirmed by
telephoning (000) 000-0000. Notice by mail or by any other means shall be sent
to:
Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000-0000
6. In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (000) 000-0000 or (000) 000-0000 and
receipt of such notice shall be confirmed by telephoning (000) 000-0000, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
7. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred Securities, which, as of the date of this letter, is "Provident
Financing Trust I ____% Cumulative Trust Preferred Securities."
8. Distribution payments or other cash payments that are part of periodic
payments with respect to the Preferred Securities evidenced by the Global
Certificate shall be received by Cede & Co., as nominee of DTC, or its
registered assigns in same-day funds no later than 2:30 p.m. (Eastern Time) on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Absent any other
arrangements between the Issuer or the Transfer Agent and Registrar and DTC,
such funds shall be wired as follows:
The Chase Manhattan Bank
The Issuer or the Transfer Agent and Registrar shall provide payment information
to a standard announcement service subscribed to by DTC. In the unlikely event
that no such service exists, the Issuer agrees that it or the Transfer Agent and
Registrar shall provide this information directly to DTC in advance of the
record date as soon as the information is available. This information should be
conveyed directly to DTC electronically. If electronic transmission is not
available, absent any other arrangements between the Transfer Agent and DTC,
such information should be sent by telecopy to DTC's Dividend Department at
(000) 000-0000 or (000) 000-0000,
-3-
and receipt of such notices shall be confirmed by telephoning (000) 000-0000.
Notices to DTC pursuant to the above by mail or by any other means shall be sent
to:
-4-
Manager; Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
9. DTC shall receive maturity and redemption payments with respect to the
Preferred Securities evidenced by the Global Certificate allocated with respect
to each CUSIP number on the payable date in same-day funds by 2:30 p.m. (Eastern
Time). Absent any other arrangements between the Transfer Agent and Registrar
and DTC, such payments shall be wired as follows:
The Chase Manhattan Bank
in accordance with existing SDFS payment procedures in the manner set forth in
DTC's SDFS Paying Agent Operating Procedures, a copy of which has previously
been furnished to the Transfer Agent and Xxxxxxxxx.
00. DTC shall receive all reorganization payments and CUSIP-level detail
resulting from corporate actions (such as tender offers, remarketings, or
mergers) on the first payable date in same-day funds by 2:30 p.m. (Eastern
Time). Absent any other arrangements between the Transfer Agent and Registrar
and DTC, such payments shall be wired as follows:
The Chase Manhattan Bank
11. DTC may by prior written notice direct the Issuer and the Transfer
Agent and Registrar to use any other telecopy number or address of DTC as the
number or address to which notices or payments may be sent.
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
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
13. DTC may discontinue its services as a securities depository with
respect to the Preferred Securities at any time by giving reasonable notice to
the Issuer and the Transfer Agent and Registrar (at which time DTC will confirm
with the Issuer or the Transfer Agent and Registrar the aggregate number of
Preferred Securities deposited with it) and discharging its responsibilities
with respect thereto under applicable law. Under such circumstances, the Issuer
may determine to make alternative arrangements for book-entry settlement for the
Preferred Securities, make available one or more separate global certificates
evidencing Preferred Securities to any Participant having Preferred Securities
credited to its DTC account, or issue
-5-
definitive Preferred Securities to the beneficial holders thereof, and in any
such case, DTC agrees to cooperate fully with the Issuer and the Transfer Agent
and Registrar, and to return the Global Certificate, duly endorsed for transfer
as directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Xxxxxxxxx.
00. In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Xxxxxxxxx.
00. This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Nothing
herein shall be deemed to require the Transfer Agent and Registrar to advance
funds on behalf of Provident Financing Trust I.
Very truly yours,
PROVIDENT FINANCING TRUST I
as Issuer
By:
---------------------------------------------
Name:
-------------------------------------------
Administrative Trustee
THE CHASE MANHATTAN BANK as Trustee, Transfer
Agent and Registrar
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
----------------------
Authorized Officer
-6-
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE WITH SECTION 5.10
-------------------------------------------------------------------------------
OF THE DECLARATION (AS DEFINED BELOW)
-------------------------------------
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1 [_________________]
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
PROVIDENT FINANCING TRUST I
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $1,000 PER COMMON SECURITY)
Provident Financing Trust I , a business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that PROVIDENT COMPANIES,
INC., a Delaware corporation (the "Holder"), is the registered owner of ( )
common securities of the Trust, representing beneficial interests of the Trust
and designated the ____% Common Securities (Liquidation Amount $1,000 per Common
Security) (the "Common Securities"). Except as provided in Section 5.10 of the
Declaration (as defined below) the Common Securities are not transferable and
any attempted transfer hereof shall be null and 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 Declaration of the Trust,
dated as of February __, 1998, , as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the
Declaration to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER AGREES TO BE
BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS THEREUNDER.
IN WITNESS WHEREOF, the undersigned Administrative Trustee of the Trust has
executed this certificate as of the ____ day of February, 1998.
PROVIDENT FINANCING TRUST I
By:
---------------------------------------------
Name:
-------------------------------------------
Administrative Trustee
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
----------------------------------------
AGREEMENT, dated as of February __, 1998, between PROVIDENT COMPANIES,
INC., a Delaware corporation (the "Corporation"), and Provident Financing Trust
I ___, a Delaware business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from the Corporation and to issue and
sell ____% Cumulative Trust Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Declaration of the Trust, dated as of February
__, 1998 as the same may be amended from time to time (the "Declaration"); and
WHEREAS, the Corporation will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Corporation hereby agrees shall benefit
the Corporation and which purchase the Corporation acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Corporation and
Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation.
----------------------------
Subject to the terms and conditions hereof, the Corporation 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.
SECTION 1.2. Term of Agreement.
-----------------
This Agreement shall terminate and be of no further force or 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 in respect of the Preferred Securities, under any Obligation, under
the Guarantee Agreement dated the date hereof between the Corporation and The
Chase Manhattan Bank, as guarantee trustee or under this Agreement for any
reason whatsoever.
This Agreement shall be continuing, irrevocable, unconditional and
absolute.
SECTION 1.3. Waiver of Notice.
----------------
The Corporation hereby waives notice of acceptance of this Agreement and of
any Obligation to which it applies or may apply, and the Corporation 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 the Corporation under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust. There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, the Corporation with respect to the happening of any of
the foregoing.
SECTION 1.5. Enforcement.
-----------
A Beneficiary may enforce this Agreement directly against the Corporation
and the Corporation waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against the Corporation.
SECTION 1.6. Subrogation.
-----------
The Corporation shall be subrogated to all (if any) rights of the Trust in
respect of any amounts paid to the Beneficiaries by the Corporation under this
Agreement; provided, however, that the Corporation shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
-2-
ARTICLE II
SECTION 2.1. Binding Effect.
--------------
This Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
SECTION 2.2. Amendment.
---------
So long as there shall remain any Beneficiary or any Preferred Securities
of any series shall be outstanding, this Agreement may 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):
Provident Financing Trust I
c/o PROVIDENT COMPANIES, INC.
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
PROVIDENT COMPANIES, INC.
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
SECTION 2.4. Governing Law.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
PROVIDENT COMPANIES, INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
-3-
PROVIDENT FINANCING TRUST I
By:
---------------------------------------------
Name:
-------------------------------------------
Administrative Trustee
-4-
EXHIBIT E
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depository") or a nominee of the Depository. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depository or its nominee only in the limited
circumstances described in the Declaration 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 Xxxxx Xxxxxx, Xxx Xxxx) to Provident
Financing Trust I 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
PROVIDENT FINANCING TRUST I
____% CUMULATIVE TRUST PREFERRED CAPITAL SECURITIES,
(LIQUIDATION AMOUNT $1,000 PER PREFERRED SECURITY)
Provident Financing Trust I, a business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that (the "Holder") is the
registered owner of (______) preferred securities of the Trust representing an
undivided beneficial interest in the assets of the Trust and designated the
Provident Financing Trust I ____% Cumulative Trust Preferred Securities
(Liquidation Amount $1,000 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 5.4 of the
Declaration (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Declaration of the Trust, dated as
of , , as the same may be amended from time to time (the "Declaration"),
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 PROVIDENT COMPANIES, INC., a Delaware corporation, and The Chase
Manhattan Bank, as guarantee trustee, dated as of February __, 1998, (the
"Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Declaration and the Guarantee to
the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER AGREES TO BE
BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS THEREUNDER.
IN WITNESS WHEREOF, the undersigned Administrative Trustee of the Trust has
executed this certificate as of the ____ day of February, 1998.
PROVIDENT FINANCING TRUST I
By:
---------------------------------------------
Name:
-------------------------------------------
Administrative Trustee
-2-
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature:
------------------------------------------------------------------- (Sign
exactly as your name appears on the other side of this Preferred Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
