EXHIBIT 4.19
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AMENDED AND RESTATED DECLARATION OF TRUST
AMONG
BOISE CASCADE CORPORATION
as Depositor,
[-------------------------------------]
as Property Trustee,
[-------------------------------------]
as Delaware Trustee,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of [_______ __], 1999
BOISE CASCADE TRUST [__]
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TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINED TERMS............................................................................1
SECTION 1.1. Definitions..............................................................................1
ARTICLE 2 ESTABLISHMENT OF THE TRUST...............................................................9
SECTION 2.1. Name.....................................................................................9
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business..............................9
SECTION 2.3. Organizational Expenses..................................................................9
SECTION 2.4. Issuance of the Preferred Securities.....................................................9
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of the Common Securities...............9
SECTION 2.6. Declaration of Trust....................................................................10
SECTION 2.7. Authorization to Enter into Certain Transactions........................................10
SECTION 2.8. Assets of Trust.........................................................................14
SECTION 2.9. Title to Trust Property.................................................................14
ARTICLE 3 PAYMENT ACCOUNT
SECTION 3.1. Payment Account.........................................................................14
ARTICLE 4 DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions...........................................................................14
SECTION 4.2. Redemption..............................................................................15
SECTION 4.3. Conversion..............................................................................17
SECTION 4.4. Special Event Exchange or Redemption....................................................18
SECTION 4.5. Subordination of Common Securities......................................................20
SECTION 4.6. Payment Procedures......................................................................20
SECTION 4.7. Tax Returns and Reports.................................................................21
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust.............................................21
SECTION 4.9. Payments under Indenture................................................................21
ARTICLE 5 TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.......................................................................21
SECTION 5.2. The Trust Securities Certificates.......................................................21
SECTION 5.3. Delivery of Trust Securities Certificates...............................................21
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities...........................22
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates......................23
SECTION 5.6. Persons Deemed Securityholders..........................................................23
SECTION 5.7. Access to List of Securityholders' Names and Addresses..................................23
SECTION 5.8. Maintenance of Office or Agency.........................................................23
SECTION 5.9. Appointment of Paying Agent.............................................................23
SECTION 5.10. Ownership of Common Securities by Depositor.............................................24
SECTION 5.11. Global Securities; Non-Global Securities; Common Securities Certificate.................24
SECTION 5.12. Notices to Clearing Agency..............................................................25
SECTION 5.13. Definitive Preferred Securities Certificates............................................25
SECTION 5.14. Rights of Securityholders...............................................................26
ARTICLE 6 ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights............................................................26
SECTION 6.2. Notice of Meetings......................................................................28
SECTION 6.3. Meetings of Preferred Securityholders...................................................28
i
SECTION 6.4. Voting Rights...........................................................................28
SECTION 6.5. Proxies, Etc............................................................................28
SECTION 6.6. Securityholder Action by Written Consent................................................29
SECTION 6.7. Record Date for Voting and Other Purposes...............................................29
SECTION 6.8. Acts of Securityholders.................................................................29
SECTION 6.9. Inspection of Records...................................................................30
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware
Trustee.................................................................................30
SECTION 7.2. Representations and Warranties of Depositor.............................................32
ARTICLE 8 THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.....................................................32
SECTION 8.2. Notice of Defaults......................................................................34
SECTION 8.3. Certain Rights of Property Trustee......................................................36
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities..................................38
SECTION 8.5. May Hold Securities.....................................................................38
SECTION 8.6. Compensation; Indemnity; Fees...........................................................38
SECTION 8.7. Property Trustee Required; Eligibility of Trustees......................................38
SECTION 8.8. Conflicting Interests...................................................................39
SECTION 8.9. Resignation and Removal; Appointment of Successor.......................................39
SECTION 8.10. Acceptance of Appointment by Successor..................................................41
SECTION 8.11. Merger, Conversion, Consolidation or Succession to Business.............................41
SECTION 8.12. Preferential Collection of Claims Against Depositor or Trust............................41
SECTION 8.13. Reports by Property Trustee.............................................................41
SECTION 8.14. Reports to the Property Trustee.........................................................42
SECTION 8.15. Evidence of Compliance with Conditions Precedent........................................42
SECTION 8.16. Number of Trustees......................................................................42
SECTION 8.17. Delegation of Power.....................................................................43
SECTION 8.18. Appointment of Administrative Trustees..................................................43
ARTICLE 9 TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date........................................................44
SECTION 9.2. Early Termination.......................................................................44
SECTION 9.3. Termination.............................................................................44
SECTION 9.4. Liquidation.............................................................................44
SECTION 9.5 Mergers, Consolidations, Amalgamations, Conversions or Replacements of the
Trust...................................................................................46
ARTICLE 10 MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders.................................................46
SECTION 10.2. Amendment...............................................................................47
SECTION 10.3. Separability............................................................................48
SECTION 10.4. Governing Law...........................................................................48
SECTION 10.5. Payments Due on Non-Business Day........................................................48
SECTION 10.6. Successors..............................................................................48
SECTION 10.7. Headings................................................................................48
SECTION 10.8. Reports, Notices and Demands............................................................48
SECTION 10.9. Agreement Not to Petition...............................................................49
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act..................................49
SECTION 10.11. Acceptance of Terms of Declaration of Trust, Guarantee and Indenture....................50
SECTION 10.12. Counterparts............................................................................50
SECTION 10.13. Purchases of Trust Securities...........................................................50
ii
Certificate of Trust of Boise Cascade Trust [__] EXHIBIT A
Form of Certificate Depositary Agreement EXHIBIT B
Form of Common Securities of Boise Cascade Trust [__] EXHIBIT C
Form of Preferred Securities of Boise Cascade Trust [__] EXHIBIT D
Notice of Conversion EXHIBIT E
iii
BOISE CASCADE TRUST [__]*
Certain Sections of this Declaration of Trust
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE DECLARATION OF TRUST
ACT SECTION SECTION
Section 310 (a)(1) 8.7
(a)(2) 8.7
(a)(4) 2.7(a)(ii)
(b) 8.8
Section 311 (a) 8.12
(b) 8.12
Section 312 (a) 5.7
(b) 5.7
(c) 5.7
Section 313 (a) 8.13(a)
(c) 10.8
(d) 8.13(c)
(a)(4) 13(b)
(b) 8.13(b)
Section 314 (a) 8.14
(b Not Applicable
(c)(1) 8.15
(c)(2) 8.15
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.1, 8.15
Section 315 (a) 8.1(a), 8.3(a)
(b) 8.2, 10.8
(c) 8.1(a)
(d) 8.1, 8.3
(e) Not Applicable
Section 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) 6.7
Section 317 (a)(1) Not Applicable
(b) 5.9
Section 318 (a) 10.10
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* Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Declaration of Trust.
iv
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of [______ __],
1999 among (i) Boise Cascade Corporation, a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii)
[________________________________], a national banking organization duly
organized and existing under the laws of the United States, as property trustee
(in such capacity, the "Property Trustee" and, in its personal capacity and not
in its capacity as Property Trustee, the "Bank"), (iii)
[________________________], a Delaware corporation, as Delaware trustee (in such
capacity, the "Delaware Trustee"), (iv) [_______________], an individual, and
[__________________], an individual, each of whose address is c/o Boise Cascade
Corporation, 0000 Xxxx Xxxxxxxxx Xxxxxx, X.X. Xxx 00, Xxxxx, Xxxxx 00000-0000,
(each, an "Administrative Trustee" and, collectively, the "Administrative
Trustees" and, collectively with the Property Trustee and Delaware Trustee, the
"Trustees") and (v) the several Holders (as hereinafter defined). The Depositor
and the Trustees hereby agree as follows:
W I T N E S S E T H:
WHEREAS, the Depositor and certain of the Trustees have heretofore
duly declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into of that certain Declaration of Trust, dated as of
[______ __], 199[9] (the "Original Declaration of Trust"), and by the execution
and filing by certain of the Trustees with the Secretary of State of the State
of Delaware of the Certificate of Trust, filed on [______ __], 199[9], attached
as Exhibit A, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust (as
defined herein) and investing the proceeds thereof in the Debentures (as defined
herein);
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, the Depositor and the Trustees desire to amend and restate
the Original Declaration of Trust in its entirety as set forth herein to provide
for, among other things, (i) the issuance and sale of the Common Securities (as
defined herein) by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein) and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the
Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other party and
for the benefit of the Holders (as defined herein) of the Preferred Securities,
hereby amends and restates the Original Declaration of Trust in its entirety and
agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Declaration of
Trust, 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 of Trust; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration of Trust as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to the Trust Securities, the
amount of Additional Interest (as defined in the Indenture) paid by the
Depositor on the Debentures.
"Additional Sums" means, with respect to the Trust Securities, the
amount of Additional Sums (as defined in the Indenture) paid by the Depositor on
the Debentures.
"Administrative Trustee" means each of Xxxxxx Xxxxxxx and Xxxx X.
Xxxxxxxx, each solely in his capacity as Administrative Trustee of the Trust
formed and continued hereunder and not in his individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor in interest in such capacity, or any successor administrative trustee
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, provided, however that an Affiliate of the
Depositor shall not be deemed to include the Trust. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of the Clearing Agency for such security, to the extent
applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Declaration
of Trust.
"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 as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjudication
or composition of or in respect of such Person under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property or ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period
of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated as
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.
2
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means either the board of directors of the
Depositor or any committee of that board duly authorized to act hereunder.
"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 any day other than a Saturday or Sunday or a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or a day on which the Corporate Trust
Office of the Property Trustee or the corporate trust office of the Debenture
Trustee is closed for business.
"Certificate Depositary 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, that has been designated to act as depositary for the Preferred
Securities pursuant to the Certificate Depositary Agreement. The Depository
Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the first Time of Delivery (as defined in the
Underwriting Agreement).
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount with respect to the assets of the
Trust of $[__] and having the rights provided therefor in this Declaration of
Trust, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Common Stock" means common stock, $2.50 par value per share, of the
Depositor.
"Conversion Agent" has the meaning specified in Section 4.3.
"Conversion Date" has the meaning specified in Section 4.3.
"Conversion Price" has the meaning specified in Section 4.3.
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date
3
hereof is located at [________________________________________________________],
Attention: Corporate Trust Services.
"Current Market Price", with respect to Common Stock, means for any
day the last reported sale price, regular way, on such day, or, if no sale takes
place on such day, the average of the reported closing bid and asked prices on
such day, regular way, in either case as reported on the New York Stock Exchange
Consolidated Transactions Tape, or, if Common Stock is not listed or admitted to
trading on the New York Stock Exchange on such day, on the principal national
securities exchange on which Common Stock is listed or admitted to trading, if
Common Stock is listed on a national securities exchange, or the Nasdaq National
Market, or, if Common Stock is not quoted or admitted to trading on such
quotation system, on the principal quotation system on which Common Stock may be
listed or admitted to trading or quoted, or, if not listed or admitted to
trading or quoted on any national securities exchange or quotation system, the
average of the closing bid and asked prices of Common Stock in the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available in such manner, as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
for that purpose or, if not so available in such manner, as otherwise determined
in good faith by the Board of Directors.
"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 thereof under the
Indenture.
"Debenture Trustee" means [___________________________________], a
national banking association duly organized and existing under the laws of the
United States, as trustee under the Indenture.
"Debentures" means $__________ aggregate principal amount of the
Depositor's ___% convertible subordinated debentures issued pursuant to the
Indenture.
"Declaration of Trust" 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 all exhibits hereto, including, for
all purposes of this Declaration of Trust 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 of Trust and any such modification,
amendment or supplement, respectively.
"Definitive Preferred Securities Certificates" means either or both
(as the context requires) of (a) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 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., Section 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 of Trust solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Direct Action" has the meaning specified in Section 6.8.
4
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means the occurrence of a Debenture Event of
Default, whatever the reason for such Debenture 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.
"Exchange Notice" has the meaning specified in Section 4.4(b).
"Expiration Date" has the meaning specified in Section 9.1.
"Global Certificate" has the meaning specified in Section 5.2.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and [_____________________________], a national banking
association duly organized and existing, under the laws of the United States, as
guarantee trustee, contemporaneously with the execution and delivery of this
Declaration of Trust, 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 Securities Certificate
representing a Trust Security is registered, such Person being a beneficial
owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of [______ __], 199[9],
between the Depositor and the Debenture Trustee, as amended or supplemented from
time to time.
"Investment Company Event" means the receipt by the Property Trustee,
on behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having
a national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), 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 1940 Act, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Preferred Securities under this Declaration of Trust.
"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.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $[__] per Trust Security.
"Liquidation Date" means each date on which Debentures or cash are to
be distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section
9.4(d).
5
"1940 Act" means the Investment Company Act of 1940, as amended.
"Notice of Conversion" means the notice given by a holder of Trust
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Trust Security for Debentures and to convert such Debentures into Common
Stock on behalf of such holder. Such notice is substantially in the form set
forth in Exhibit E.
"Officers' Certificate" means a certificate signed by (i) the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by (ii)
the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 8.15 shall
be the principal executive, financial or accounting officer of the Depositor.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Declaration of Trust shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant of 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 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 may be an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel delivered with respect to compliance with a
condition or covenant provided for in this Declaration of Trust shall include:
(a) a statement that each individual signing the Opinion of Counsel
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 individual in rendering the Opinion of
Counsel;
(c) a statement that each individual has made such examination or
investigation as is necessary to enable such individual 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 individual,
such condition or covenant has been complied with.
"Optional Redemption Price" means, except as set forth below, with
respect to the Preferred Securities, the following percentages of the
Liquidation Amounts thereof, and accumulated and unpaid Distributions, if any,
to the date fixed for redemption if redeemed during the twelve-month period
commencing __________ in each of the following years:
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
% %
---- ----- ---- -----
---- ----- ---- -----
---- ----- ---- and thereafter 100.0%
---- -----
6
In the event of a redemption of Trust Securities upon the occurrence
of a Tax Event, Trust Securities shall be redeemed at the redemption price of
$[__] per Trust Security and all accumulated and unpaid Distributions, if any to
the date fixed for redemption.
"Original Declaration of Trust" has the meaning specified in the
recitals to this Declaration of Trust.
"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 of Trust, except:
(a) Trust Securities theretofore cancelled by the Securities Registrar
or delivered to the Securities Registrar for cancellation or tendered for
conversion;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee
or any Paying Agent for the Holders of such Trust Securities; provided
that, if such Trust Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Declaration of Trust; and
(c) Trust Securities which have been paid or in exchange for or in
lieu of which other Trust Securities have been executed and delivered
pursuant to Section 5.5;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Trust
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 Trust Securities that such Trustee actually knows to be so owned shall be
so disregarded and (b) the foregoing shall not apply at any time when all of the
Outstanding Trust Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Trust Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Securities Registrar the pledgee's right so to act
with respect to such Trust 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.
"Payment Account" means a segregated non-interest bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Section 4.1.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
7
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount with respect to the assets of
the Trust of $[__] and having the rights provided therefor in this Declaration
of Trust, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration of
Trust solely in its capacity as Property Trustee of the Trust heretofore formed
and continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $[__]
per Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums) to the date of redemption.
"Relevant Trustee" has the meaning specified in Section 8.9.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" has the same meaning as "Holder."
"Special Event" means a Tax Event or an Investment Company Event.
"Successor Property Trustee" has the meaning specified in Section 8.9.
"Successor Delaware Trustee" has the meaning specified in Section 8.9.
"Successor Securities" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Property Trustee, on behalf of
the Trust, of an Opinion of Counsel, rendered by a law firm having a national
tax and securities practice (which Opinion of Counsel shall not have been
rescinded by such law firm), to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Declaration of Trust, there is more than an
insubstantial risk in each case after the date thereof that (i) the Trust is, or
will be within 90 days after the date thereof, subject to United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest payable by the Depositor on the Debentures is not, or will not be,
within 90 days after the date hereof, deductible, in whole or in part, for
United States federal income tax purposes or (iii) the Trust is, or will be
within 90 days after the date thereof, subject to more than de minimus amount of
other taxes, duties, assessments or other governmental charges.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page of this Declaration of Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939
8
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) any cash on deposit in,
or owing to, the Payment Account and (c) all proceeds and rights in respect of
the foregoing to be held by the Property Trustee pursuant to the terms of this
Declaration of Trust for the benefit of the Securityholders.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates, the Global Certificates or the Certificated Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
[______ __], 199[9] among the Trust, the Depositor, and the Underwriter(s) named
therein.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name. The Trust created hereby shall be known as "Boise
Cascade Trust [__]", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business. The address of the Delaware Trustee in the State of Delaware is
[_______________________, _______________,] 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
Securityholders and the Depositor. The principal executive office of the Trust
is 0000 Xxxx Xxxxxxxxx Xxxxxx, X.X. Xxx 00, Xxxxx, Xxxxx 00000-0000.
SECTION 2.3. Organizational Expenses. 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. On [______ __],
199[9], the Depositor and an Administrative Trustee on behalf of the Trust
executed and delivered the Underwriting Agreement. On the Closing Date, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Purchasers named in the Underwriting Agreement
Preferred Securities Certificates, in an aggregate amount of __________
Preferred Securities having an aggregate Liquidation Amount of $__________,
against receipt of the aggregate purchase price of such Preferred Securities of
$__________, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee.
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of the
Common Securities. Contemporaneously with the execution and delivery of this
Declaration of Trust, the Administrative Trustees, on behalf of the Trust, shall
subscribe to and purchase from the Depositor the Debentures, registered in the
name of the Property Trustee (in its capacity as such) and having an aggregate
principal amount equal to $__________, and, in satisfaction of the purchase
price for such
9
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $__________. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver to the Depositor the Common Securities Certificates registered in
the name of the Depositor, in an aggregate amount of __________ Common
Securities having an aggregate Liquidation Amount of $__________ against receipt
of the aggregate purchase price of such Common Securities from the Depositor in
the amount of $__________.
SECTION 2.6. Declaration of Trust. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and use the
proceeds from such sale to acquire the Debentures, (b) to distribute the Trust's
income as provided in this Declaration of Trust and (c) to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust. The Depositor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon and
subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 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 of Trust. Subject to the limitations set forth in Section 2.6
and paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the exclusive power, duty and
the authority to cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrative Trustee shall have the
power and authority to act on behalf of the Trust with respect to the
following matters:
(A) to issue and sell the Trust Securities, provided, however,
that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and,
provided, further, that there shall be no interests in the Trust other
than the Trust Securities, and the issuance of Trust Securities shall
be limited to simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date, subject to the issuance of
Trust Securities pursuant to Section 5.5 and Successor Securities
pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Underwriting Agreement and the
Certificate Depositary Agreement and such other agreements as may be
necessary or incidental to the purposes and function of the Trust;
(C) to assist in the registration of the Preferred Securities
under the Securities Act of 1933, as amended (the "Securities Act"),
and under state securities or blue sky laws, and the qualification of
this Declaration of Trust as a trust indenture under the Trust
Indenture Act;
10
(D) to assist 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 (only to the extent that such listing or registration
is requested by the Depositor);
(E) to appoint a Paying Agent, a Securities Registrar and an
authenticating agent in accordance with this Declaration of Trust;
(F) to the extent provided in this Declaration of Trust, to wind
up the affairs of and liquidate the Trust and prepare, execute and
file the certificate of cancellation with the Secretary of State of
the State of Delaware;
(G) unless otherwise requested of 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 other
Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Declaration of
Trust; and
(H) to take any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Declaration of Trust including, but
not limited to:
(x) causing the Trust not to be deemed to be an "investment
company" required to be registered under the 1940 Act;
(y) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(z) cooperating with the Depositor to ensure that the
Debentures will be treated as indebtedness of the Depositor for
United States federal income tax purposes;
provided that such action does not adversely affect in any material respect the
interests of Securityholders or the remaining Trustees except as otherwise
provided in Section 10.2(a).
(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 and taking title to the Debentures;
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(C) the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
(D) the distribution from the Trust Property of amounts owed to
the Securityholders in respect of the Trust Securities in accordance
with the Declaration of Trust;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures following an occurrence of an Event of
Default;
(F) the sending of notices of default, other notices and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Declaration of Trust;
(G) the distribution of the Trust Property in accordance with the
terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Declaration of Trust and protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder);
(J) subject to 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); and
(K) to act as Paying Agent and/or Securities Registrar to the
extent appointed as such hereunder.
(b) So long as this Declaration of Trust remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trust shall not, and the Trustees
shall not and shall cause the Trust not to (i) invest any proceeds received
by the Trust from holding the Debentures (rather, the Trustees shall
distribute all such proceeds to the Securityholders pursuant to the terms
of this Declaration of Trust and the Trust Securities), acquire any
investments or engage in any activities not authorized by this Declaration
of Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii)
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes, (iv) make
any loans or incur any indebtedness for borrowed money or issue any other
debt, (v) take or consent to any action that would result in the placement
of a Lien on any of the Trust Property, (vi) possess any power or otherwise
act in such a way as to vary the Trust assets or the terms of the Trust
Securities in any way whatsoever except as permitted by the terms of this
Declaration of Trust, or (vii) issue any securities or other evidences of
beneficial ownership of, or
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beneficial interest in, the Trust other than the Trust Securities. The
Administrative Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust
with respect to, or effect on behalf of the Trust, the following actions
(and any actions taken by the Depositor in furtherance of the following
prior to the date of this Declaration of Trust are hereby ratified and
confirmed in all respects):
(i) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Underwriting Agreement and the
Certificate Depositary Agreement and such other agreements as may be
necessary or incidental to the purposes and functions of the Trust;
(ii) to file with the Commission and to execute on behalf of the
Trust a registration statement on the appropriate form in relation to
the Preferred Securities, including any amendments thereto;
(iii) to determine the States and foreign jurisdictions in which
to take appropriate action to qualify or register for sale all or part
of the Preferred Securities and to do any and all such acts, other
than actions which must be taken by or on behalf of the Trust, and
advise the Trustees of actions they must take on behalf of the Trust,
and prepare for execution and filing any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of
any such States and foreign jurisdictions;
(iv) to the extent necessary, to prepare for filing by the Trust
with the Commission and to execute on behalf of the Trust a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including any amendments thereto and
to assist in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor; and
(v) any other actions necessary or incidental 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 taxed as a corporation for United States federal income tax purposes and
so that the Debentures will be treated as indebtedness of the Depositor for
United States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any
action, not inconsistent with applicable law, the Certificate of Trust or
this Declaration of Trust, that each of the Depositor and the
Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes, so long as such action does not adversely
affect in any material respect the interests of the Holders of the
Preferred Securities except as otherwise provided in Section 10.2(a).
13
SECTION 2.8. Assets of Trust. The assets of the Trust shall consist of
only 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 Securityholders in accordance with this Declaration
of Trust. Each Securityholder shall not have legal title to any part of the
assets of the Trust, but shall have an undivided beneficial interest in the
assets of the Trust.
ARTICLE 3
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 of Trust. All monies and other property deposited or held from
time to time in the Payment Account shall be held by the Property Trustee
in the Payment Account for the exclusive benefit of the Securityholders and
for distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debentures. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative, and
shall accrue from the date of original issuance, or the most recent
Distribution Date (as defined herein) and, except in the event that the
Depositor exercises its right to defer the payment of interest on the
Debentures pursuant to the Indenture, shall be payable quarterly in arrears
on __________, __________, __________ and __________ of each year,
commencing on __________, 199[9] (which dates correspond to the interest
payment dates on the Debentures), when, as and if available for payment by
the Property Trustee, as further described in paragraph (c) of this Section
4.1. If any date on which Distributions are otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distributions
shall be made on the next succeeding day which is a Business Day (and no
interest shall accrue for the period from and after such date until the
next succeeding Business Day) 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").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and the Distributions on the Trust Securities shall be
payable at a rate of ____% per annum of the Liquidation Amount of the Trust
Securities, such rate being the rate of interest payable on the Debentures
to be held by the Property Trustee. The amount of Distributions payable for
any period shall be computed on the basis of a 360-day year of twelve
30-day months. For periods less than a full quarter, Distributions shall
reflect
14
interest on Debentures computed on the basis of the actual number of
elapsed days for any period based on a 360-day year of twelve 30-day
months. The amount of Distributions payable for any period shall include
the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record
date, which shall be the date which is the fifteenth day (whether or not a
Business Day) next preceding such Distribution Date.
SECTION 4.2. Redemption.
(a) Upon an optional redemption (as set forth in the Indenture) of
Debentures, the proceeds from such redemption shall be applied to redeem
Trust Securities having an aggregate Liquidation Amount equal to the
aggregate principal amount of the Debentures so redeemed by the Depositor,
including pursuant to Section 4.4, at the Optional Redemption Price, and
upon a mandatory redemption (as set forth in the Indenture) of Debentures,
the proceeds from such redemption shall be applied to redeem Trust
Securities having an aggregate Liquidation Amount equal to the aggregate
principal amount of the Debentures so redeemed by the Depositor, at the
Redemption Price.
(b) Notice of redemption (which notice will be irrevocable) 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 the
Depositor and each Holder of Trust Securities to be redeemed, at such
Holder's address as it appears in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption Price, as
the case may be;
(iii) the CUSIP number;
(iv) if less than all of the Outstanding Trust Securities are to
be redeemed, the identification and the aggregate Liquidation Amount
of the particular Trust Securities to be redeemed;
(v) (A) that a Holder of Preferred Securities who desires to
convert such Preferred Securities called for redemption must satisfy
the requirements for conversion contained in Section 4.3 below and
(B) the Conversion Price;
(vi) that on the Redemption Date the Redemption Price or the
Optional Redemption Price, as the case may be, will become due and
payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
15
(vii) the place or places where such Trust Securities are to be
surrendered for payment of the Redemption Price or the Optional
Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price or the Optional Redemption Price, as the
case may be, with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the
Redemption Price or the Optional Redemption Price, as the case may be,
shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment
of such Redemption Price or the Optional Redemption Price, as the case may
be.
(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 and to the extent 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 or
Optional Redemption Price, as the case may be, on such Preferred Securities
held in certificated form and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price or the Optional
Redemption Price, as the case may be, to the Holders thereof upon surrender
of their Preferred Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the Redemption Date for any Trust
Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates.
If notice of redemption shall have been given and funds deposited as
required, then, upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the Redemption
Price or the Optional Redemption Price, as the case may be, but without
interest, and such Trust Securities will cease to be Outstanding. In the
event that any date on which any Redemption Price or the Optional
Redemption Price, as the case may be, is payable is not a Business Day,
then payment of the Redemption Price or the Optional Redemption Price, as
the case may be, payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay), with the same force and effect as if made on
such date.
(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated on a pro rata basis
(based on Liquidation Amounts) among the Common Securities and the
Preferred Securities that are to be redeemed. The particular Preferred
Securities to be redeemed shall be selected 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 lot or by such other
method as the Property Trustee shall deem customary and appropriate and
which may provide for the selection for redemption of portions (equal to
$[__] or an integral multiple of $[__] in excess thereof) of the
Liquidation Amount of the Preferred Securities. The Property Trustee shall
promptly notify the Securities Registrar and the Conversion Agent 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; it being understood that, in the
case of Preferred Securities registered in the
16
name of and held of record by the Clearing Agency (or any successor) or any
nominee, the distribution of the proceeds of such redemption will be made
in accordance with the procedures of the Clearing Agency or its nominee.
For all purposes of this Declaration of Trust, unless the context otherwise
requires, all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of
Preferred Securities which has been or is to be redeemed. In the event of
any redemption, the Trust shall not be required to (i) issue, register the
transfer of or exchange any Preferred Security during a period beginning at
the opening of business 15 days before any selection for redemption of
Preferred Securities and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been
given to all holders of Preferred Securities to be so redeemed or (ii)
register the transfer of or exchange on any Preferred Securities so
selected for redemption, in whole or in part, except for the unredeemed
portion of any Preferred Securities being redeemed in part.
[SECTION 4.3. Conversion. The Holders of Trust Securities, subject to
the limitations set forth in this Section, shall have the right at any time, at
their option, to cause the Conversion Agent to convert Trust Securities, on
behalf of the converting Holders, into shares of Common Stock in the manner
described herein on and subject to the following terms and conditions:
(i) The Trust Securities will be convertible into fully paid and
nonassessable shares of Common Stock pursuant to the Holder's direction to
the Conversion Agent to exchange such Trust Securities for a portion of the
Debentures in a principal amount equal to the Liquidation Amount of such
Trust Securities, and immediately convert such amount of Debentures into
fully paid and nonassessable shares of Common Stock at an initial rate of
______ shares of Common Stock for each Trust Security (which is equivalent
to a conversion price of $______ per share of Common Stock), subject to the
terms and certain adjustments set forth in the Indenture (as so adjusted,
"Conversion Price"). In case Trust Securities or a portion thereof are
called for redemption, such conversion right in respect of the Trust
Securities or portion thereof so called shall expire at the close of
business on the Business Day immediately preceding the Redemption Date,
unless the Property Trustee fails to irrevocably deposit funds sufficient
to pay the Redemption Price or Optional Redemption Price, as the case may
be.
(ii) In order to convert Trust Securities into Common Stock, the
Holder of such Trust Securities shall submit to the Conversion Agent an
irrevocable Notice of Conversion to convert Trust Securities on behalf of
such Holder, together, if the Trust Securities are in certificated form,
with such certificates. The Notice of Conversion shall (x) set forth the
number of Trust Securities to be converted and the name or names, if other
than the Holder, in which the shares of Common Stock should be issued and
(y) direct the Conversion Agent (a) to exchange such Trust Securities for a
portion of the Debentures held by the Property Trustee (at the rate of
exchange specified in the preceding paragraph) and (b) to immediately
convert such Debentures, on behalf of such Holder, into Common Stock (at
the conversion rate specified in the preceding paragraph). The Conversion
Agent shall notify the Property Trustee of the Holder's election to
exchange Trust Securities for a portion of the Debentures held by the
Property Trustee and the Property Trustee shall, upon receipt of such
notice, deliver to the Conversion Agent the appropriate principal amount of
Debentures for exchange in accordance with this Section. The Conversion
Agent shall thereupon notify the Depositor of the Holder's election to
convert such Debentures into shares of Common Stock. Holders of Trust
Securities at the close of business on a Distribution payment record date
will be entitled to receive the Distribution paid on such Trust Securities
on the corresponding Distribution Date notwithstanding the conversion of
such Trust Securities following such record date but prior to such
Distribution Date. Except as provided above, neither the Trust nor the
17
Depositor will make, or be required to make, any payment, allowance or
adjustment upon any conversion on account of any accumulated and unpaid
Distributions whether or not in arrears accrued on the Trust Securities
surrendered for conversion, or on account of any accumulated and unpaid
dividends on the shares of Common Stock issued upon such conversion. Trust
Securities shall be deemed to have been converted immediately prior to the
close of business on the day on which an irrevocable Notice of Conversion
relating to such Trust Securities is received by the Conversion Agent in
accordance with the foregoing provision (the "Conversion Date"). The Person
or Persons entitled to receive the Common Stock issuable upon conversion of
the Debentures shall be treated for all purposes as the record holder or
holders of such Common Stock on the date of conversion. As promptly as
practicable on or after the Conversion Date, the Depositor shall issue and
deliver, or shall cause to be issued and delivered, at the office of the
Conversion Agent a certificate or certificates for the number of full
shares of Common Stock issuable upon such conversion, together with the
cash payment, if any, in lieu of any fraction of any share to the Person or
Persons entitled to receive the same, unless otherwise directed by the
Holder in the notice of conversion, and the Conversion Agent shall
distribute such certificate or certificates and cash to such Person or
Persons.
(iii) Each Holder of a Trust Security by its acceptance thereof
initially appoints [_____________________________] not in its individual
capacity but solely as conversion agent (the "Conversion Agent") for the
purpose of effecting the conversion of Trust Securities in accordance with
this Section. In effecting the conversion and transactions described in
this Section, the Conversion Agent shall be acting as agent of the Holders
of Trust Securities directing it to effect such conversion transactions.
The Conversion Agent is hereby authorized to (i) exchange Trust Securities
from time to time for Debentures held by the Trust in connection with the
conversion of such Trust Securities in accordance with this Section and
(ii) convert all or a portion of the Debentures into Common Stock and
thereupon to deliver such shares of Common Stock in accordance with the
provisions of this Section and to deliver to the Property Trustee any new
Debenture or Debentures for any resulting unconverted principal amount
delivered to the Conversion Agent by the Debenture Trustee.
(iv) No fractional shares of Common Stock will be issued as a result
of conversion, but, in lieu thereof, such fractional interest will be paid
in cash by the Depositor to the Conversion Agent in an amount equal to the
Current Market Price of the fractional share of the Common Stock, and the
Conversion Agent will in turn make such payment to the Holder or Holders of
Trust Securities so converted.
(v) Nothing in this Section 4.3 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities or as
set forth in this Agreement or otherwise required of the Property Trustee
or by law or the Trust to pay any amounts on account of such withholdings.]
SECTION 4.4. Special Event Exchange or Redemption.
(a) If a Special Event shall occur and be continuing, the Property
Trustee shall direct the Conversion Agent to exchange all Outstanding Trust
Securities for Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Trust Securities to be exchanged and with accrued
interest in an amount equal to any unpaid Distribution (including any
Additional Amounts) on the Trust Securities; provided, however, that, in
the case of a Tax Event, the Depositor shall have the right to (i) direct
that less than all, or none, as appropriate, of the Trust Securities be so
exchanged if and for so long as the Depositor shall have elected to pay any
Additional Sums (as defined in the Indenture) such that the amount received
by Holders of Trust Securities not so
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exchanged in respect of Distributions and other distributions are not
reduced as a result of such Tax Event, and shall not have revoked any such
election or failed to make such payments or (ii) cause the Trust Securities
to be redeemed in the manner set forth below. If a Tax Event shall occur or
be continuing, the Depositor shall have the right, upon not less than 30
nor more than 60 days' notice, to redeem the Debentures, in whole or in
part, for cash upon the later of (i) 90 days following the occurrence of
such Tax Event or (ii) __________ ___, 200[_]. Promptly following such
redemption, Trust Securities with an aggregate Liquidation Amount equal to
the aggregate principal amount of the Debentures so redeemed will be
redeemed by the Trust at 100% of the principal amount thereof together with
accrued and unpaid Distributions to the redemption date, on a pro rata
basis.
(b) Notice of any exchange pursuant to this Section 4.4 (an "Exchange
Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class mail to
the Depositor and to each record Holder of Trust Securities to be exchanged
not fewer than 30 nor more than 60 days prior to the date fixed for
exchange thereof. For purposes of the calculation of the date of exchange
and the dates on which notices are given pursuant to this paragraph (b), an
Exchange Notice shall be deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to each Holder. Each Exchange
Notice shall be addressed to each Holder of Trust Securities at the address
of such Holder appearing in the books and records of the Trust. Each
Exchange Notice shall state: (A) the exchange date; (B) the aggregate
Liquidation Amount and any unpaid Distributions (including any Additional
Amounts) on the Trust Securities to be exchanged and the aggregate
principal amount and any accrued interest on the Debentures to be exchanged
therefor; (C) that on the exchange date the Trust Securities to be so
exchanged shall be exchanged for Debentures and that Distributions on the
Trust Securities so exchanged will cease to accumulate on and after said
date; and (D) the identity of the Conversion Agent, if any, and the place
or places where each Trust Certificate to be exchanged is to be surrendered
in exchange for Debentures. No defect in the Exchange Notice or in the
mailing thereof with respect to any Trust Security shall affect the
validity of the exchange proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding Preferred
Securities are to be exchanged, then, on the exchange date, (i) if all of
the Outstanding Preferred Securities are represented by Definitive
Preferred Securities Certificates, the particular Preferred Securities to
be exchanged will be selected by the Property Trustee from the Outstanding
Preferred Securities not previously called for redemption or exchange on a
pro rata basis, (ii) if all of the Outstanding Preferred Securities are
represented by Book-Entry Preferred Securities Certificates, the Property
Trustee shall provide for the selection for exchange of a portion of the
Global Certificate representing the Book-Entry Preferred Securities
Certificates on a pro rata basis and (iii) if Outstanding Trust Securities
are represented by both Definitive Preferred Securities Certificates and
Book-Entry Preferred Securities Certificates, the Property Trustee shall
select the portion of the Global Certificate representing the Book-Entry
Preferred Securities Certificates and the particular Outstanding Preferred
Securities represented by Definitive Preferred Securities Certificates to
be exchanged on a pro rata basis. In the case of clause (ii) or (iii)
above, the particular Book-Entry Preferred Securities Certificates to be
exchanged shall be selected in accordance with the applicable rules and
procedures for the Clearing Agency in whose name, or whose nominee's name,
such global certificate is then held. Any Preferred Securities Certificate
that is to be exchanged only in part shall be surrendered with due
endorsement or by a written instrument of transfer fully executed by the
Holder thereof (or its attorney duly authorized in writing) and the Trust
shall prepare and deliver to such Holder, without service charge, a new
Preferred Securities Certificate or
19
Certificates in aggregate stated Liquidation Amount equal to, and in
exchange for, the unredeemed portion of the Preferred Securities
Certificate so surrendered. The Common Securities shall be exchanged in a
similar manner.
(d) In the event of an exchange pursuant to this Section 4.4, on the
date fixed for any such exchange, (i) if the Preferred Securities are
represented by Book-Entry Preferred Securities Certificates, the Clearing
Agency of its nominee, as the record Holder of such Preferred Securities,
will exchange through the Conversion Agent the Global Certificate
representing the Preferred Securities to be exchanged for a registered
Global Certificate or certificates representing the Debentures to be
delivered upon such exchange, (ii) if the Preferred Securities are
represented by Definitive Preferred Securities Certificates, the
certificates representing the Preferred Securities to be so exchanged will
be deemed to represent Debentures having a principal amount equal to the
aggregate stated Liquidation Amount of such Preferred Securities until such
certificates are presented to the Conversion Agent for exchange for
definitive certificates representing Debentures and (iii) all rights of the
Holders of the Preferred Securities so exchanged will cease, except for the
right of such Holders to receive Debentures. The Common Securities shall be
exchanged in a similar manner.
(e) Each Holder, by becoming a party to this Agreement pursuant to
Section 10.11 of this Agreement, will be deemed to have agreed to be bound
by these exchange provisions in regard to the exchange of Trust Securities
for Debentures pursuant to the terms described above.
(f) Nothing in this Section 4.4 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities, as
set forth in this Agreement or under applicable law or otherwise require
the Property Trustee or the Trust to pay any amounts on account of such
withholdings.
(g) An exchange of Trust Securities for Debentures pursuant to this
Section 4.4 shall be made to Holders of Trust Securities as they appear on
the Securities Register for Trust Securities on the relevant record date,
which shall be the date which is the fifteenth day (whether or not a
Business Day) preceding the exchange date.
SECTION 4.5. Subordination of Common Securities. Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date or Redemption Date an Event of Default shall have
occurred and be continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or the 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 and payable.
SECTION 4.6. Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, in accordance with
the Certificate Depositary Agreement on the applicable Distribution Dates.
Payments in respect of the Common
20
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Holder of the Common Securities.
SECTION 4.7. Tax Returns and Reports. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense, and file
(or cause to be filed) 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 or filed) Form 1041 or 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 Security holder a Form 1099 or the appropriate Internal Revenue Service
form required to be furnished to such Securityholder or the information required
to be provided on such form. The Administrative Trustees shall provide (or cause
to be provided) the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or furnishing. The
Administrative Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust. Upon receipt
under the Debentures of Additional Sums, the Property Trustee, upon receipt of
written notice from the Depositor or the Administrative Trustees, shall promptly
pay from such Additional Sums any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes), as indicated in such notice,
imposed on the Trust by the United States or any other taxing authority.
SECTION 4.9. Payments under Indenture. Any amount payable hereunder to
any Holder of Preferred Securities (and any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (or Owner) has
directly received pursuant to Section 5.8 of the Indenture in accordance with
the terms of Section 6.8 hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the formation of the Trust 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 $[__]
Liquidation Amount and integral multiples of $[__] in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $[__]
Liquidation Amount and integral multiples thereof. The consideration received by
the Trust for the issuance of the Trust Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the
Trust. Initially the Preferred Securities will be represented by a certificate
registered in the Securities Register in the name of a Clearing Agency or a
nominee thereof, in global form (the "Global Certificate"). The Trust Securities
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature of at least one Administrative Trustee and the Preferred Securities
Certificates shall be authenticated by the Property 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 benefit of this
Declaration of Trust, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.4.
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SECTION 5.3. Delivery of Trust Securities Certificates. On the Closing
Date, the Administrative Trustees shall cause Trust Securities Certificates, in
an aggregate Liquidation Amount as provided in Sections 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, any Vice Chairman, its
President, or any Vice President, Treasurer or Assistant Treasurer or Controller
without further corporate action by the Depositor, in authorized denominations.
A Common Securities Certificate shall not be valid until executed by
at least one Administrative Trustee. A Preferred Securities Certificate shall
not be valid until authenticated by the manual signature of an authorized
signatory of the Property Trustee. The signature shall be conclusive evidence
that the Preferred Securities Certificate has been authenticated under this
Declaration of Trust. Upon a written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate the Preferred
Securities Certificates for original issue.
The Property Trustee may appoint an authenticating agent acceptable to
the Administrative Trustees to authenticate Preferred Securities Certificates.
An authenticating agent may authenticate Preferred Securities Certificates
whenever the Property Trustee may do so. Each reference in this Declaration of
Trust to authentication by the Property Trustee includes authentication by such
agent. An authenticating agent has the same rights as the Property Trustee to
deal with the Depositor or an Affiliate with respect to the authentication of
Preferred Securities.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities. The Securities Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 5.8, a Securities Register in
which, subject to such reasonable regulations as it may prescribe, the
Securities Registrar shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.10 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The Property
Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Security
at an office or agency of the Depositor designated pursuant to Section 5.8 for
such purpose, the Depositor shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, and subject to the other provisions of
this Section 5.4, Preferred Securities may be exchanged for other Preferred
Securities of any authorized denomination and of a like Liquidation Amount, upon
surrender of the Preferred Securities to be exchanged at any such office or
agency. Whenever any Preferred Securities are so surrendered for exchange, the
Depositor shall execute, and the Property Trustee shall authenticate and
deliver, the Preferred Securities which the Holder making the exchange is
entitled to receive.
All Preferred Securities issued upon any registration of transfer or
exchange of Preferred Securities shall be the valid obligations of the Trust,
evidencing the same rights, and entitled to the same benefits under this
Declaration of Trust, as the Securities surrendered upon such registration of
transfer or exchange.
Every Preferred Security presented or surrendered for registration of
transfer or for exchange shall (if so requested by the Depositor or the
Securities Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor and the Securities
Registrar duly executed, by the Holder thereof or such Holder's attorney duly
authorized in writing.
No service charge shall be made 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
22
tax or governmental charge that may be imposed in connection with any transfer
or exchange 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 authentication, where applicable, and
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
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, 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 duplicative Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders. The Property Trustee and
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 Property
Trustee nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses.
The Administrative Trustees or the Depositor shall furnish or cause to be
furnished (unless the Property Trustee is acting as Securities Registrar with
respect to the Trust Securities under the Declaration of Trust) a list, in such
form as the Property Trustee may reasonably require, of the names and addresses
of the Securityholders as of the most recent record date (a) to the Property
Trustee, quarterly at least 5 Business Days before each Distribution Date, and
(b) to the Property Trustee, as promptly as practicable after receipt by the
Depositor of a request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Declaration of Trust,
in each case to the extent such information is in the possession or control of
the Administrative Trustees or the Depositor and is not identical to a
previously supplied list or has not otherwise been received by the Property
Trustee in its capacity as Securities Registrar. The rights of Securityholders
to communicate with other Securityholders with respect to their rights under
this Declaration of Trust or under the Trust Securities, and the corresponding
rights of the Trustee shall be as provided in the Trust Indenture Act, except to
the extent Section 3819 of the Delaware Business Trust Act would require greater
access to such information, in which case the latter shall apply. Each Holder,
by receiving and holding a Trust Securities Certificate, and each Owner shall be
deemed to have agreed not to hold the Depositor, the Property Trustee or the
Administrative Trustees 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 Securities Registrar
shall maintain in The City of New York an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served. The Securities Registrar initially designates [_____________________,
_______________, _______________], Attention: Corporate Trust Services, as its
principal corporate trust office for such purposes. The Securities Registrar
shall give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
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SECTION 5.9. Appointment of Paying Agent. In the event that the
Preferred Securities are not in book-entry form only, the Trust shall maintain
in the Borough of Manhattan, The City of New York, an office or agency (the
"Paying Agent") where the Preferred Securities may be presented for payment. The
Paying Agent shall make Distributions to Securityholders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Declaration of Trust in any material respect. The Paying
Agent shall initially be the Property Trustee, and any co-paying agent chosen by
the Property Trustee and acceptable to the Administrative Trustees and the
Depositor in their sole discretion. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Property
Trustee and the Depositor. In the event that the Property Trustee shall no
longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a
successor that is reasonably acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank or trust company). Each
successor Paying Agent or any additional Paying Agent shall agree with the
Trustees that, as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the Securityholders
in trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to each Securityholder. 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 Property
Trustee also in its role as Paying Agent, for so long as the Property Trustee
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor. On the
Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law, any
attempted transfer of the Common Securities shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate.
(a) Each Global Certificate authenticated under this Declaration of
Trust shall be registered in the name of the Clearing Agency designated by
the Depositor for such Global Certificate or a nominee thereof and
delivered to such Clearing Agency or a nominee thereof or custodian
therefor, and each such Global Certificate shall constitute a Preferred
Security for all purposes of this Declaration of Trust.
(b) If a Global Certificate is to be exchanged for Certificated
Preferred Securities or cancelled in whole, it shall be surrendered by or
on behalf of the Clearing Agency, its nominee or custodian to the Property
Trustee, as Securities Registrar, for exchange or cancellation as provided
in this Article 5. If any Global Certificate is to be exchanged for
Certificated Preferred Securities or cancelled in part, or if another
Preferred Security is to be exchanged in whole or in part for a beneficial
interest in any Global Certificate, in each case, as provided in Section
5.4, then either (i) such Global Certificate shall be so surrendered for
exchange or cancellation as provided in this Article 5 or (ii) the
Liquidation Amount thereof shall be reduced or increased by an amount equal
to the portion thereof to be so exchanged or cancelled, or equal to the
principal amount of such Certificated Preferred Security to be so exchanged
for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Property Trustee, as
Securities Registrar, whereupon the Property Trustee, in
24
accordance with the Applicable Procedures, shall instruct the Clearing
Agency or its authorized representative to make a corresponding adjustment
to its records. Upon any such surrender or adjustment of a Global
Certificate, the Property Trustee shall, subject to Section 5.4 and as
otherwise provided in this Article 5, authenticate and deliver any
Preferred Securities issuable in exchange for such Global Certificate (or
any portion thereof) to or upon the order of, and registered in such names
as may be directed by, the Clearing Agency or its authorized
representative.
Upon the request of the Property Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph, the
Depositor shall cause as promptly as practicable to be made available to
the Property Trustee a reasonable supply of Preferred Securities that are
not in the form of Global Certificates. The Property Trustee shall be
entitled to rely upon any order, direction or request of the Clearing
Agency or its authorized representative which is given or made pursuant to
this Article 5 if such order, direction or request is given or made in
accordance with the Applicable Procedures.
(c) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Certificate or any portion thereof, whether pursuant to this Article 5 or
otherwise, shall be authenticated and delivered in the form of, and shall
be, a Global Certificate, unless such Preferred Security is registered in
the name of a Person other than the Clearing Agency for such Global
Certificate or a nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner of a
Global Certificate, shall be the holder of such Global Certificate for all
purposes under the Declaration of Trust and the Preferred Securities, and
owners of beneficial interests in a Global Certificate shall hold such
interests pursuant to the Applicable Procedures. Accordingly, any such
Owner's beneficial interest in a Global Certificate will be shown only on,
and the transfer of such interest shall be effected only through, records
maintained by the Clearing Agency or its nominee or its participants and
such owners of beneficial interests in a Global Certificate will not be
considered the owners or holders of such Global Certificate for any purpose
of this Declaration of Trust or the Preferred Securities.
(e) 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 of
Trust, unless and until Definitive Preferred Securities Certificates shall have
been issued to Owners pursuant to Section 5.13, the Administrative Trustees and
the Property Trustee shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to provide notices directly to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
Notwithstanding any other provision in this Declaration of Trust, no Global
Certificate may be exchanged in whole or in part for Preferred Securities
registered, and no transfer of a Global Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Global Certificate or a nominee thereof unless (i) such Clearing Agency (A) has
notified the Depositor that it is unwilling or unable to continue as Clearing
Agency for such Global Certificate or (B) has ceased to be a clearing agency
registered as such under the Securities Exchange Act of 1934, as amended, and in
either case the Trust and the Depositor thereupon fails to appoint a successor
Clearing Agency, (ii) the Depositor, at
25
its option, notifies the Property Trustee in writing that it elects to cause the
issuance of the Preferred Securities in certificated form or (iii) there shall
have occurred and be continuing an Event of Default or any event which after
notice or lapse of time or both would be an Event of Default. In all cases,
Certificated Preferred Securities delivered in exchange for any Global
Certificate or beneficial interests therein will be registered in the names, and
issued in any approved denominations, requested by or on behalf of the Clearing
Agency (in accordance with its customary procedures).
SECTION 5.14. Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.9, and the Securityholders shall not have any right
or title therein other than the undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Declaration of
Trust. The Trust Securities shall have no preemptive or similar rights and, when
issued and delivered to Securityholders against payment of the purchase price
therefor, will be fully paid and nonassessable by the Trust. The Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.9 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 Securityholders from time to time as partners or
members of an association.
(b) Subject to Section 8.2 hereof, if an Event of Default with respect
to the Preferred Securities has occurred and been subsequently cured,
waived or otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof
shall apply. During (x) the period commencing on the date of the occurrence
of an Event of Default with respect to the Preferred Securities and ending
on the date when such Event of Default is cured, waived or otherwise
eliminated, or (y) any period not described in either the preceding
sentence or the preceding clause (x), the provisions of Section 6.1(b)(i)
shall apply.
(i) The holders of a majority in aggregate Liquidation Amount of
the Preferred Securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee or to exercise any trust or power conferred
upon the Property Trustee under the Declaration of Trust, including
the right to direct the Property Trustee to exercise the remedies
available to it as a holder of the Debentures but excluding the right
to direct the Property Trustee to consent to an amendment,
modification or termination of the Indenture (which shall be as
provided below). So long as any Debentures are held by the Property
Trustee, the Administrative Trustees and the Property Trustee shall
not (A) direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture
26
Trustee with respect to such Debentures, (B) waive any past default
which is waivable under Section 5.13 of the Indenture, (C) exercise
any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of a majority in
aggregate Liquidation Amount of all Outstanding Preferred Securities
(except in the case of clause (D), which consent, in the event that no
Event of Default shall occur and be continuing, shall be of the
Holders of all Trust Securities, voting together as a single class);
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
Administrative Trustees and the Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of
the Preferred Securities, except by a subsequent vote of the Holders
of the Preferred Securities. The Property Trustee shall notify all
Holders of record of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the
Preferred Securities, prior to taking any of the foregoing actions,
the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation or
partnership for United States federal income tax purposes on account
of such action.
(ii) Subject to Section 8.2 of this Declaration of Trust and only
after the Event of Default with respect to the Preferred Securities
has been cured, waived, or otherwise eliminated, the holders of a
majority in aggregate Liquidation Amount of the Common Securities will
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee or to
exercise any trust or power conferred upon the Property Trustee under
the Declaration of Trust, including the right to direct the Property
Trustee to exercise the remedies available to it as a holder of the
Debentures but excluding the right to direct the Property Trustee to
consent to an amendment, modification or termination of the Indenture
(which shall be as provided below). So long as any Debentures are held
by the Property Trustee, the Trustees shall not (A) direct the time,
method and place of conducting any proceeding for any remedy available
to the Debenture Trustee, or executing any trust or power conferred on
the Debenture Trustee with respect to such Debentures, (B) waive any
past default which is waivable under Section 5.13 of the Indenture,
(C) exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable or (D)
consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a majority
in aggregate Liquidation Amount of all Common Securities (except in
the case of clause (D), which consent, in the event that no Event of
Default shall occur and be continuing, shall be of the Holders of all
Trust Securities, voting together as a single class); provided,
however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby,
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no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Common Securities. The
Trustees shall not revoke any action previously authorized or approved
by a vote of the Holders of the Common Securities, except by a
subsequent vote of the Holders of the Common Securities. The Property
Trustee shall notify all Holders of record of the Common Securities of
any notice of default received from the Debenture Trustee with respect
to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Common Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to
the effect that the Trust will not be classified as an association
taxable as a corporation or partnership for United States federal
income tax purposes on account of such action.
(c) If any proposed amendment to the Declaration of Trust provides
for, or the Trustees otherwise propose to effect the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of
this Declaration of Trust, 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 66 2/3% in aggregate Liquidation Amount of
the Outstanding Preferred Securities.
SECTION 6.2. Notice of Meetings. Notice of all meetings of the Holders
of the Preferred Securities, stating the time, place and purpose of the meeting,
shall be given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at its registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3. Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
the Holders of Preferred Securities to vote on any matters as to which such
Holders are entitled to vote.
Holders of record of 50% of the Preferred Securities (based upon their
Liquidation Amount), present in person or by proxy, shall constitute a quorum at
any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Holders of record of Preferred Securities present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon their
Liquidation Amount) held by Holders of record of Preferred Securities present,
either in person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Declaration of Trust requires a greater number of
affirmative votes.
SECTION 6.4. Voting Rights. Securityholders shall be entitled to one
vote for each $[__] of Liquidation Amount represented by their Trust Securities
in respect of any matter as to which such Securityholders are entitled to vote.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by the Depositor, the Trustees or any
affiliate of any Trustee shall, for purposes of such vote or consent, be treated
as if such Preferred Securities were not outstanding.
SECTION 6.5. Proxies, Etc. At any meeting of Securityholders, any
Securityholders entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it
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shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. Pursuant
to a resolution of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several Persons, any one of them may vote at any meeting in
person or represented by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding more than [a majority] of all Outstanding
Trust Securities (based upon their Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Declaration of Trust) shall consent to the
action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Declaration of Trust, or for the purpose of any other
action, the Property Trustee may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distributions or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration of Trust to be given, made or taken by
Securityholders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Declaration of Trust 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 of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than the signer's individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of the signer's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which any Trustee receiving the same deems
sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
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Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article 6, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Upon the occurrence and continuation of an Event of Default, the
holders of Preferred Securities shall rely on the enforcement by the Property
Trustee of its rights as holder of the Debentures against the Depositor. If the
Property Trustee fails to enforce its rights as holder of the Debentures after a
request therefor by a holder of Preferred Securities, such holder may, to the
fullest extent permitted by law, proceed to enforce such rights directly against
the Depositor. Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Depositor to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
Redemption Date), then a holder of Preferred Securities shall have the right to
institute a proceeding directly against the Depositor, for enforcement of
payment to such holder of the principal amount of or interest on Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such holder after the respective due date specified in
the Debentures (a "Direct Action"). In connection with any such Direct Action,
the rights of the Depositor will be subrogated to the rights of any holder of
the Preferred Securities to the extent of any payment made by the Depositor to
such holder of Preferred Securities as a result of such Direct Action.
A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any Person or entity.
SECTION 6.9. Inspection of Records. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee. The Property Trustee and the Delaware Trustee, each
severally on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that (each such representation
and warranty made by the Property Trustee and the Delaware Trustee being made
only with respect to itself):
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States;
(b) the Delaware Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware;
(c) each of the Property Trustee and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and perform
its obligations under this
30
Declaration of Trust and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration of Trust;
(d) this Declaration of Trust has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally
binding agreement of the Property Trustee enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(e) this Declaration of Trust has been duly authorized, executed and
delivered by the Delaware trustee under Delaware law (excluding tax and
securities laws) constitutes the valid and legally binding agreement of the
Delaware trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(f) the execution, delivery and performance by the Property Trustee of
this Declaration of Trust have been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and does not
require any approval of stockholders of the Property Trustee and such
execution, delivery and performance will not (i) violate the Property
Trustee's charter or by-laws, (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Property
Trustee is a party or by which it is bound, or (iii) to the Property
Trustee's knowledge violate any law, governmental rule or regulation of the
United States or the State of New York as the case may be, governing the
banking, corporate, or trust powers of the Property Trustee or the Delaware
Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;
(g) the execution, delivery and performance by the Delaware Trustee of
this Declaration of Trust have been duly authorized by all necessary
corporate or other action on the part of the Delaware Trustee and does not
require any approval of stockholders of the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Delaware
Trustee's charter or by-laws, (ii) violate any provision of, or constitute,
with or without notice or lapse of time, a default under, or result in the
creation or imposition of any Lien on any properties included in the Trust
Property pursuant to the provisions of, any indenture, mortgage, credit
agreement, license or other agreement or instrument to which the Delaware
Trustee is a party or by which it is bound, or (iii) to the Delaware
Trustee's knowledge violate any law, governmental rule or regulation of the
United States or the State of Delaware as the case may be;
(h) neither the authorization, execution or delivery by the Property
Trustee of this Declaration of Trust nor the consummation of any of the
transactions by the Property Trustee contemplated herein or therein to its
knowledge 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, corporate or trust powers of the Property Trustee under the
laws of the United States, the State of New York (excluding any securities
laws of any jurisdiction);
(i) neither the authorization, execution or delivery by the Delaware
Trustee of this Declaration of Trust nor the consummation of any of the
transactions by the
31
Delaware Trustee contemplated herein or therein to its knowledge 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,
corporate or trust powers of the Delaware Trustee under the laws of the
United States or the State of Delaware (excluding any securities laws of
any jurisdiction);
(j) 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 of
Trust.
SECTION 7.2. Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Declaration of Trust and the Securityholders will be, as of such date,
entitled to the benefits of this Declaration of Trust; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Property Trustee or the
Delaware Trustee, as the case may be, of this Declaration of Trust.
ARTICLE 8
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Declaration of Trust and, in the case of the Property
Trustee, by the Trust Indenture Act. The Property Trustee, before the
occurrence of any Event of Default and after the curing or waiving of all
Events of Default that may have occurred, shall undertake to perform only
such duties and obligations as are specifically set forth in this
Declaration of Trust and the Trust Indenture Act and no implied covenants
shall be read into this Declaration of Trust against the Property Trustee.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 8.2) of which a responsible officer of the Property
Trustee has actual knowledge, the Property Trustee shall exercise such
rights and powers vested in it by this Declaration of Trust and the Trust
Indenture Act, and use the same degree of care and skill in its exercise,
as a prudent individual would exercise or use under the circumstances in
the conduct of his or her own affairs. Notwithstanding the foregoing, no
provision of this Declaration of Trust shall require the Trustees to expend
or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of
32
this Declaration of Trust relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject to
the provisions of this Section. Nothing in this Declaration of Trust shall
be construed to release the Administrative Trustees or the Delaware Trustee
from liability for their own grossly negligent action, their own grossly
negligent failure to act, or their own willful misconduct. To the extent
that, at law or in equity, an Administrative Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Administrative Trustee's good faith
reliance on the provisions of this Declaration of Trust or advice of
counsel. The provisions of this Declaration of Trust, to the extent that
they restrict the duties and liabilities of the Administrative Trustees
otherwise existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Securityholder, by its acceptance of a Trust Security,
agrees that it will look solely to the revenue and proceeds from the Trust
Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.1(b) does not
limit the liability of the Trustees expressly set forth elsewhere in this
Declaration of Trust or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) No provision of this Declaration of Trust 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 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 of Trust;
(iii) the Property Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property as fiduciary
assets, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration of Trust 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
33
Account maintained by the Property Trustee pursuant to Section 3.1 and
except to the extent otherwise required by law; and
(v) neither the Property Trustee nor the Administrative Trustees
shall be responsible for monitoring each other's compliance or the
compliance of the Depositor with their respective duties under this
Declaration of Trust, nor shall the Property Trustee or the
Administrative Trustees be liable for each other's default or
misconduct or that of the Depositor.
SECTION 8.2. Notice of Defaults.
(a) Within ten days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice
of such Event of Default to the holders of Preferred Securities, the
Administrative Trustees and the Depositor, unless such Event of Default
shall have been cured or waived, provided that, except for a default in the
payment of principal of (or premium, if any) or interest on any of the
Debentures, the Property Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the executive committee,
or a trust committee of directors and/or responsible officers of the
Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Preferred Securities.
(b) Within ten days after the receipt of notice of the Depositor's
exercise of its right to extend the interest payment period for the
Debentures pursuant to the Indenture, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.8, notice of such
exercise to the Securityholders, unless such exercise shall have been
revoked.
(c) The Holders of a majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Debenture
Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration of Trust shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority")
to be waived under the Indenture, the Event of Default under the
Declaration of Trust may only be waived by the vote of the Holders of
the same proportion in Liquidation Amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
The provisions of Section 6.1(b) and this Section 8.2(c) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration of Trust and the Preferred Securities, as permitted by the
Trust Indenture Act. Upon such waiver, any such default shall cease to
exist, and any Event of Default with respect to the Preferred Securities
arising therefrom shall be deemed to have been cured, for every purpose of
this Declaration of Trust, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the
Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Preferred Securities of an Event of
34
Default with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such
Event of Default with respect to the Common Securities for all purposes of
this Declaration of Trust without any further act, vote, or consent of the
Holders of the Common Securities.
(d) The Holders of a majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Debenture
Event of Default:
(i) is not waivable under the Indenture, except where the Holders
of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section
8.2(d), the Event of Default under the Declaration of Trust shall also
not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration of Trust as
provided below in this Section 8.2(d), the Event of Default under the
Declaration of Trust may only be waived by the vote of the Holders of
the same proportion in Liquidation Amount of the Common Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
provided further, that each Holder of Common Securities will be deemed to
have waived any such Event of Default and all Events of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Preferred Securities and only
the Holders of the Preferred Securities will have the right to direct the
Property Trustee in accordance with the terms of the Securities. The
provisions of Section 6.1(b) and this Section 8.2(d) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from
this Declaration of Trust and the Preferred Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section
8.2(d), upon such waiver, any such default shall cease to exist and any
Event of Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this Declaration of
Trust, but no such waiver shall extend to any subsequent or other default
or Event of Default with respect to the Common Securities or impair any
right consequent thereon.
(e) A waiver of a Debenture Event of Default under the Indenture by
the Property Trustee at the direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under
this Declaration of Trust. The foregoing provisions of this Section 8.2(e)
shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration of Trust and the Preferred Securities, as
permitted by the Trust Indenture Act.
(f) The Holders of a majority in liquidation amount of Preferred
Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee
or to direct the exercise of any trust or
35
power conferred upon the Property Trustee, including the right to direct
the Property Trustee to exercise the remedies available to it as holder of
the Debentures; provided, however, that the Property Trustee shall have the
right to decline to follow any such direction if the Property Trustee shall
determine that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction or if the Property Trustee, being
advised by counsel, determines that the action or proceeding so directed
may not lawfully be taken or if the Property Trustee, in good faith, by its
board of directors or trustees, executive committee, or a trust committee
of directors or trustees and/or responsible officers, shall determine that
the action or proceedings so directed would involve the Property Trustee in
personal liability. If the Property Trustee fails to enforce its rights
under the Debentures after the Holders of a majority in liquidation amount
of the Preferred Securities have so directed the Property Trustee, a holder
of record of such Preferred Securities may, to the fullest extent permitted
by law, institute a legal proceeding against the Depositor to enforce the
Property Trustee's rights under the Debentures without first instituting
first instituting any legal proceeding against the Property Trustee or any
other Person.
SECTION 8.3. Certain Rights of Property Trustee. Subject to the
provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if no Event of Default has occurred and is continuing and, (i) in
performing its duties under this Declaration of Trust the Property Trustee
is required to decide between alternative courses of action or (ii) in
construing any of the provisions in this Declaration of Trust 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 of Trust, then, except as to any
matter as to which the Holders of Preferred Securities are entitled to vote
under the terms of this Declaration of Trust, 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 of
Trust as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Declaration of Trust shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of Trust, the
Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering
36
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 and an
Opinion of Counsel which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to accomplish 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 of its selection
(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 or any
Opinion of 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; and the
Property Trustee shall have the right at any time, upon prior notice to the
Depositor, to seek instructions concerning the administration of this
Declaration of Trust 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 of Trust at the
request or direction of any of the Securityholders pursuant to this
Declaration of Trust, unless such Securityholders shall have offered to the
Property Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(h) the Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolutions, 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 Holders of
record of 25% or more of the Preferred Securities (based upon their
Liquidation Amount), but the Property Trustee may make such further inquiry
or investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys or an Affiliate, provided that the Property Trustee
shall be responsible for its own negligence, recklessness or bad faith with
respect to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Declaration of Trust the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities, which instructions may only be given by
the Holders of the same proportion in Liquidation Amount of the Trust
Securities as would be entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such remedy, right or action,
(ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Declaration of
Trust, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration of
Trust.
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No provision of this Declaration of Trust shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall not
be taken as the statements of the Trustees, 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. Except as provided in the definition
of the term "Outstanding" in Article 1, 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 Section 8.8 and 8.12, 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 the Trustees from time to time such compensation for all
services rendered by them hereunder as the parties shall agree from time to
time (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) 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 of Trust (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 gross
negligence (or, in the case of the Property Trustee, ordinary negligence),
willful misconduct or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, 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 the
creation, 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 of Trust, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee, ordinary negligence), willful misconduct or bad faith
with respect to such acts or omissions; and
(d) no Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
SECTION 8.7. 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
38
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 be either (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or
(ii) a legal entity with its principal place of business in the State of
Delaware and that otherwise meets the requirements of applicable Delaware
law that shall act through one or more persons authorized to bind such
entity.
SECTION 8.8. 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 of Trust. The Property Trustee's
services as Trustee under the Guarantee and as Debenture Trustee shall not be
deemed to constitute a conflicting interest.
SECTION 8.9. Resignation and Removal; Appointment of Successor.
(a) Subject to Sections 8.9(b) and 8.9(c), any Trustee (the "Relevant
Trustee") may be appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Depositor; and
(ii) after the issuance of any Securities, by vote of the Holders
of a majority in Liquidation Amount of the Common Securities voting as
a class.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the
qualifications to act as a Property Trustee under Section 8.7 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee and delivered to the
Trust, the Depositor and the removed Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the
qualifications to act as Delaware Trustee under Section 8.7 (a "Successor
Delaware Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Depositor and the removed Delaware Trustee.
39
(d) A Trustee appointed to office shall hold office until his, her or
its successor shall have been appointed or until his, her or its death,
removal, resignation, dissolution or liquidation. Any Trustee may resign
from office (without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the Depositor
and the Trust, which resignation shall take effect upon such delivery or
upon such later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(1) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(2) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the
Depositor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best efforts
promptly to appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with Section
8.9(d).
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this
Section 8.9 within 60 days after delivery pursuant to this Section 8.9 of
an instrument of resignation or removal, the Property Trustee or Delaware
Trustee resigning or being removed, as applicable, may petition any court
of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(h) The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to
all Securityholders in the manner provided in Section 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.
(i) Notwithstanding the foregoing or any other provision of this
Declaration of Trust, 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
40
or (b) otherwise by the Depositor (with the successor in each case being a
Person who satisfies the eligibility requirement for Administrative
Trustees or the Delaware Trustee, as the case may be, set forth in Section
8.7).
(j) The indemnity provided to a Trustee under Section 8.6 shall
survive any Trustee's resignation or removal.
SECTION 8.10. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall duly
assign, transfer and deliver to the successor Trustee all property and money
held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee shall execute
and deliver an amendment hereto wherein each successor Relevant Trustee shall
accept such appointment and which shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee and upon the execution and delivery of such amendment
the resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee, such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder.
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 8.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Relevant Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.12. Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or Trust (or any such
other obligor).
41
SECTION 8.13. Reports by Property Trustee.
(a) To the extent required by the Trust Indenture Act, within 60 days
after December 31 of each year commencing with December 31, 199[9] the
Property Trustee shall transmit to all Securityholders in accordance with
Section 10.8 and to the Depositor, a brief report dated as of such December
31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to
the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with all
of its obligations under this Declaration of Trust during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respects with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its
opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its
actions under this Declaration of Trust as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(c) A copy of such report shall, at the time of such transmissions to
Holders, be filed by the Property Trustee with each national securities
exchange or self-regulatory organization upon which the Trust Securities
are listed, with the Commission and with the Depositor.
SECTION 8.14. 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 8.15. 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 of Trust 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 8.16. Number of Trustees.
(a) The number of Trustees shall be [four], provided that the Holder
of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property Trustee and
the Delaware Trustee may be the same Person.
42
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.16(a), or
if the number of Trustees is increased pursuant to Section 8.16(a), a
vacancy shall occur.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.9,
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 of
Trust.
SECTION 8.17. 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
thereof filed with the Commission, or making any other governmental filing.
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation
is not prohibited by applicable law or contrary to the provisions of the
Trust, as set forth herein.
SECTION 8.18. Appointment of Administrative Trustees.
(a) The Administrative Trustees shall initially be [_______________],
an individual, and [_________________], an individual, and their successors
shall be appointed by the Holders of a majority in Liquidation Amount of
the Common Securities and may resign or be removed by the Holders of a
majority in Liquidation Amount of the Common Securities at any time. Upon
any resignation or removal, the Depositor shall appoint a successor
Administrative Trustee. If at any time there is no Administrative Trustee,
the Property Trustee or any Holder who has been a Holder of Trust
Securities for at least six months may petition any court of competent
jurisdiction for the appointment of one or more Administrative Trustees.
(b) 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 this Section 8.18, the Administrative Trustees
in office, regardless of their number (and not withstanding 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 of Trust.
(c) Notwithstanding the foregoing or any other provision of this
Declaration of Trust, if any Administrative Trustee who is a natural person
dies or becomes, in the opinion of the Holders of a majority in Liquidation
Amount the Common Securities, incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by the
unanimous act of the remaining Administrative Trustees, if there were at
least two of them prior to such vacancy, and by the Depositor, if there
were not two such Administrative Trustees immediately prior to such vacancy
(with the
43
successor being a Person who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.7).
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date. Unless earlier
terminated, the Trust shall automatically terminate on [______ __, ____] (the
"Expiration Date"), following the distribution of the Trust Property in
accordance with Section 9.4.
SECTION 9.2. Early Termination. The first to occur of any of the
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the occurrence of a Special Event except in the case of a Tax
Event following which the Depositor has elected to (i) pay any Additional
Sums (in accordance with Section 4.4) such that the net amount received by
Holders of Preferred Securities in respect of Distributions is not reduced
as a result of such Tax Event and the Depositor has not revoked any such
election or failed to make such payments or (ii) redeem all or some of the
Debentures pursuant to Section 4.4(a);
(c) the redemption, conversion or exchange of all of the Trust
Securities;
(d) upon the repayment of the Debentures or at such time as no
Debentures are outstanding;
(e) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction; and
(f) receipt by the Property Trustee of written notice from the
Depositor at any time (which notice is optional and wholly within the
discretion of the Depositor) of its intention to terminate the Trust and
distribute the Debentures in exchange for the Preferred Securities.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the liquidation
of the Trust pursuant to Section 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 all expenses owed by the Trust; (c) the discharge of all
administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders, and (d) the filing of the certificate of cancellation with
the Secretary of State of the State of Delaware pursuant to Section 3810 of
the Delaware Business Trust Act. Notwithstanding any provision hereof to the
contrary, each of Depositor's obligations set forth in Section 8.3 hereof
shall survive and continue regardless of the occurrence of any of the
foregoing.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), (e) or
(f) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Administrative Trustees and the Property Trustee as
expeditiously as the Trustees
44
determine to be possible by distributing, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, to each
Securityholder an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Trust Securities held by such Holder,
subject to Section 9.4(e). 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 as it appears 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 an aggregate principal amount of Debentures equal to the
aggregate Liquidation Amount of Preferred Securities held by such
Holder; 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(e) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(e) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for
such distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency or its nominee, as the record holder
of such Trust Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such
distribution and (iii) any Trust Securities Certificates not held by the
Clearing Agency will be deemed to represent an aggregate principal amount
of Debentures equal to the aggregate Liquidation Amount of Preferred
Securities held by such Holders, and bearing accrued and unpaid interest in
an amount equal to the accrued and unpaid Distributions on such Trust
Securities until such certificates are presented to the Property Trustee
for transfer or reissuance.
(d) In the event that, 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
practicable, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner
as the Property Trustee determines in good faith. In such event, on the
date of the dissolution, winding up or other termination of the Trust,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an
amount equal to the Liquidation Amount per Trust Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding-up or
termination, the
45
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities
will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as aforesaid)
with Holders of Preferred Securities, except that, if a Debenture Event of
Default has occurred and is continuing, the Preferred Securities shall have
a priority over the Common Securities.
SECTION 9.5 Mergers, Consolidations, Amalgamations, Conversions or
Replacements of the Trust. The Trust may not merge with or into, consolidate,
amalgamate, convert into, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation or other
Person, except pursuant to this Section 9.5. At the request of the Depositor,
with the consent of the Administrative Trustees and without the consent of the
Property Trustee, the Delaware Trustee or the Holders of the Preferred
Securities, the Trust may merge with or into, consolidate, amalgamate, convert
into, be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that (i) such successor entity either (a) expressly assumes all
of the obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to Distributions and payments upon liquidation, redemption
and otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity, possessing the same powers and duties as the Property Trustee, as the
holder of the Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any, (iv) such merger, consolidation,
amalgamation, conversion, 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, conversion, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, conversion, replacement, conveyance, transfer or lease the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, conversion, 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 (other than with respect to any dilution of the Holder's
interest in the new entity), (b) following such merger, consolidation,
amalgamation, conversion, 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 (c) following such merger, consolidation,
amalgamation, conversion or replacement, the Trust or such successor entity will
be treated as a grantor trust for United States federal income tax purposes and
(viii) the Depositor or any permitted successor or assignee owns all of the
Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in aggregate Liquidation Amount of
the Preferred Securities, consolidate, amalgamate, convert into, merge with or
into, be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other entity or permit any other entity to
consolidate, amalgamate, convert into, merge with or into, or replace it if such
consolidation, amalgamation, conversion, merger, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity to be classified
as other than a grantor trust for United States federal income tax purposes.
46
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders. The death or
incapacity of any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Declaration of Trust, nor entitle
the legal representatives or heirs of such person or any Securityholder for such
person to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION 10.2. Amendment.
(a) This Declaration of Trust may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i)
to cure any ambiguity, correct or supplement any provision herein 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 of Trust, which shall not be inconsistent with the other
provisions of this Declaration of Trust, (ii) to modify, eliminate or add
to any provisions of this Declaration of Trust to such extent as shall be
necessary to ensure that the Trust will be classified for United States
federal income tax purposes as a grantor trust at all times that any Trust
Securities are Outstanding or to ensure that the Trust will not be required
to register as an "investment company" under the 1940 Act, or be classified
as other than a grantor trust for United States federal income tax
purposes, or (iii) to maintain the qualification of this Declaration of
Trust under the Trust Indenture Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect
the interests of any Securityholder, and any amendments of this Declaration
of Trust shall become effective when notice thereof is given to the
Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Declaration of Trust may be amended by the Trustees and the Depositor
with (i) the consent of Holders representing not less than 66 2/3% (based
upon Liquidation Amounts) of the Trust Securities then Outstanding, acting
as a single class, and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power
granted to the Trustees in accordance with such amendment will not affect
the Trust's status as a grantor trust for United States federal income tax
purposes or the Trust's not being required to register as an "investment
company" under the 1940 Act, provided, however, if any amendment or
proposal that would adversely affect the powers, preferences or special
rights of the Trust Securities, whether by way of amendment or otherwise,
would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected 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 66 2/3% in Liquidation Amount of such class of
Trust Securities.
(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof),
this Declaration of Trust may not be amended to (i) change the amount or
timing of any Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in respect of the
Trust Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on
or after such date; notwithstanding any other provision herein, without the
unanimous consent of the
47
Securityholders (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 of Trust,
no Trustee shall enter into or consent to any amendment to this Declaration
of Trust which would cause the Trust to be required to register as an
"investment company" under the 1940 Act, or to be classified as other than
a grantor trust for United States federal income tax purposes or to reduce
or otherwise adversely affect the powers of the Property Trustee.
(e) Notwithstanding anything in this Declaration of Trust to the
contrary, without the consent of the Depositor, this Declaration of Trust
may not be amended in a manner which imposes any additional obligation on
the Depositor.
(f) In the event that any amendment to this Declaration of Trust 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 of Trust which
affects its own rights, duties or immunities under this Declaration of
Trust.
(h) The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any amendment to this
Declaration of Trust is in compliance with this Declaration of Trust.
SECTION 10.3. Separability. In case any provision in this
Declaration of Trust or in the Trust Securities Certificates shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. GOVERNING LAW. THIS DECLARATION OF TRUST AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND TRUSTEES
WITH RESPECT TO THIS DECLARATION OF TRUST IN THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL 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 which is not a Business
Day, then such payment need not be made on such date but may be made on the
next succeeding day which is a Business Day (except as otherwise provided in
Section 4.1(a) and Section 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 of Trust 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 8 of the Indenture and pursuant to
which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder.
SECTION 10.7. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Declaration of
Trust.
SECTION 10.8. Reports, Notices and Demands. Any report, notice,
demand or other communications which by any provision of this Declaration of
Trust is required or permitted to be given or
48
served to or upon any Securityholder or the Depositor may be given or served in
writing by deposit thereof, first-class postage prepaid, in the United States
mail, hand delivery or facsimile transmission, in each case, addressed, (a) in
the case of a Holder of Preferred Securities, to such Holder as such Holder's
name and address may appear on the Securities Register; and (b) in the case of
the Holder of the Common Securities, to Boise Cascade Corporation, 0000 Xxxx
Xxxxxxxxx Xxxxxx, X.X. Xxx 00, Xxxxx, Xxxxx 00000-0000, Attention: General
Counsel.
Any notice to Preferred Securityholders shall also be given to such Owners
as have, within two years preceding the giving of such notice, filed their names
and addresses with the Property Trustee for that purpose. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given, or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of this
Declaration of Trust 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
[_______________________, __________________, _________________], Attention:
Corporate Trust Services, (b) with respect to the Delaware Trustee, to
[_________________________, __________________, _______________], Attention:
Corporate Trust Administration, with a copy of any such notice to the Property
Trustee at its address above, and (c) with respect to the Administrative
Trustees, to them at the address for notices to the Depositor, marked
"Attention: General Counsel." 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 agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
9, it 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 Securityholders, that, at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Declaration of Trust.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of
Trust and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is the
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 of Trust by any of the provisions of the Trust Indenture Act,
such required provision shall control. If any provision of this Declaration
of Trust modifies or excludes any provision of the Trust
49
Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Declaration of Trust as so modified or to
be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration of
Trust 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 OF TRUST,
GUARANTEE AND INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS DECLARATION OF TRUST PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
DECLARATION OF TRUST SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS TO THE TRUST
AND SUCH SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts. This Declaration of Trust may contain
more than one counterpart of the signature page and this Declaration of Trust
may be executed by the affixing of the signature of each of the Trustees to
one of such counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same force and
effect as though all of the signers had signed a single signature page.
SECTION 10.13. Purchases of Trust Securities. Subject to applicable
law (including, without limitation, United States federal securities law), the
Depositor or its subsidiaries or Affiliates may at any time and from time to
time purchase outstanding Preferred Securities by tender, in the open market
or by private agreement.
50
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Declaration of Trust to be duly executed as of the day and
year first above written.
BOISE CASCADE CORPORATION,
as Depositor
By:
---------------------------------------
Name:
Title:
[ ],
---------------------------------------
as Property Trustee
By:
---------------------------------------
Name:
Title:
[ ],
---------------------------------------
as Delaware Trustee
By:
---------------------------------------
Name:
Title:
[ ],
---------------------------------------
as Administrative Trustee
[ ],
---------------------------------------
as Administrative Trustee
51
EXHIBIT A
CERTIFICATE OF TRUST
OF
BOISE CASCADE TRUST [__]
THIS Certificate of Trust of Boise Cascade Trust [__] (the "Trust") is
being duly executed and filed by Wilmington Trust Company, a Delaware business
corporation, and Xxxx X. Xxxxxxxx, as trustees, to form a business trust under
the Delaware Business Trust Act (12 DEL. C. Section 3801 ET SEQ.).
1. NAME. The name of the business trust formed hereby is Boise Cascade
Trust [__].
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being all of the initial trustees of
the Trust, have executed this Certificate.
WILMINGTON TRUST COMPANY
By:
---------------------------------------
Name:
Title:
---------------------------------------
Name: Xxxx X. Xxxxxxxx
A-1
EXHIBIT B
FORM OF CERTIFICATE
DEPOSITARY AGREEMENT
B-1
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
--------- ---------------------
Certificate Evidencing Common Securities
of
Boise Cascade Trust [__]
Common Securities
(liquidation amount $[__] per Common Security)
Boise Cascade Trust [__], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that Boise Cascade
Corporation (the "Holder") is the registered owner of __________ common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust (the "Common Securities"). In accordance with Section 5.10
of the Declaration of Trust (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of [______ __], 199[9], as the same may be amended from time
to time (the "Declaration of Trust") including the designation of the terms of
the Common Securities as set forth therein. The Holder is entitled to the
benefits of the Common Securities Guarantee Agreement entered into by the Holder
and [__________________________], as Guarantee Trustee, dated as of [______ __],
199[9] (the "Guarantee"), to the extent provided therein. The Trust will furnish
a copy of the Declaration of Trust and the Guarantee to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Declaration of
Trust and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of [______ __] 199[9].
BOISE CASCADE TRUST [__]
By:
------------------------------------------
Name:
As Administrative Trustee
C-1
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-mentioned
Declaration of Trust.
Dated: [______ __], 199[9].
[ ],
---------------------------------------
as Property Trustee
By:
------------------------------------------
Authorized Signatory
C-2
EXHIBIT D
THIS PREFERRED SECURITY IS A BOOK- ENTRY PREFERRED SECURITIES CERTIFICATE
WITHIN THE MEANING OF THE DECLARATION OF TRUST HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF
DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION OF TRUST AND NO TRANSFER OF THIS
PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE
BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF
DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (55 WATER STREET, NEW YORK), TO BOISE CASCADE TRUST [__] 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 DTC AND ANY PAYMENT HEREON 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 A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
D-1
Certificate Number Number of Common Securities
--------- -----------
CUSIP No. __________
$______________
Certificate Evidencing Preferred Securities
of
Boise Cascade Trust [__]
__% Convertible Preferred Securities
(liquidation amount $[__] per Preferred Security)
Boise Cascade Trust [__], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that __________________
(the "Holder") is the registered owner of _______ preferred securities of the
Trust representing an undivided beneficial interest in the assets of the Trust
and designated the Boise Cascade Trust [__] __% [Convertible] Preferred
Securities (liquidation amount $[__] 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 of Trust (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 Trust of
the Trust dated as of [______ __], 199[9] as the same may be amended from time
to time (the "Declaration of Trust") 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 Boise Cascade Corporation, a
Delaware corporation, and [__________________________], as Guarantee Trustee,
dated as of [______ __], 199[9] (the "Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Declaration of Trust and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office. Upon receipt of this
certificate, the Holder is bound by the Declaration of Trust and is entitled to
the benefits thereunder.
D-2
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ___ day of [______ __], 199[9].
BOISE CASCADE TRUST [__]
By:
------------------------------------------
Name:
An Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Declaration of Trust.
Dated: [______ __], 199[9]
[ ],
---------------------------------------
as Property Trustee
By:
------------------------------------------
Authorized Signatory
D-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
------------------------------------
Signature:
-------------------------------
(Sign exactly as our name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:
-----------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Securities Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Securities
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
[TO BE ATTACHED TO GLOBAL CERTIFICATE]
SCHEDULE A
The initial liquidation amount of this Global Certificate shall be
$__________. The following increases or decreases in the liquidation amount of
this Global Certificate have been made:
Amount of
increase in
Liquidation
Amount of this Amount of Liquidation Signature of
Global decrease in Amount of this authorized
Certificate Liquidation Global Certificate officer of
including upon Amount of this following such Trustee or
Date exercise of over Global decrease or Securities
Made allotment option Certificate increase Custodian
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT E
NOTICE OF CONVERSION
To: [__________________________]
as Property Trustee of
Boise Cascade Trust [__]
The undersigned owner of these Trust Securities hereby irrevocably
exercises the option to convert these Trust Securities, or the portion below
designated, into Common Stock of BOISE CASCADE CORPORATION (the "Company Common
Stock") in accordance with the terms of the Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as [______ __], 199[9], by __________
and __________, as Administrative Trustees, [___________________], as Delaware
Trustee, [_______________________], as Property Trustee, Boise Cascade
Corporation, as Depositor, and by the Holders, from time to time, of individual
beneficial interests in the Trust to be issued pursuant to the Declaration of
Trust. Pursuant to the aforementioned exercise of the option to convert these
Trust Securities, the undersigned hereby directs the Conversion Agent (as that
term is defined in the Declaration of Trust) to (i) exchange such Trust
Securities for a portion of the Debentures (as that term is defined in the
Declaration of Trust) held by the Trust (at the rate of exchange specified in
the terms of the Trust Securities set forth in the Declaration of Trust) and
(ii) immediately convert such Debentures on behalf of the undersigned, into
Company Common Stock (at the conversion rate specified in the terms of the Trust
Securities set forth in the Declaration of Trust).
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date: ,
------------ ----
in whole in part
-- --
Number and type of Trust Securities
to be converted:
-----------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in
which the shares of Company Common
Stock are to be issued, along with
the address or addresses of such
person or persons
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Signature (for conversion only)
E-1
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
------------------------------------
------------------------------------
------------------------------------
Signature Guarantee:
---------------
----------
*(Signature must be guaranteed by an institution which is a member of the
following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to the Trustee.)
E-2
