Exhibit 4.2
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AMENDED AND RESTATED DECLARATION OF TRUST
AMONG
SUPERIOR TELECOM INC.
AS DEPOSITOR,
[ ]
AS PROPERTY TRUSTEE,
[ ]
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF ____________, 1999
SUPERIOR TRUST I
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SUPERIOR TRUST I*
Certain Sections of this Declaration relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE DECLARATION
ACT SECTION SECTION
Section 310 (a) (1)...............................................8.7
(a) (2)...............................................8.7
(a) (4)........................................2.6(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)...........................................8.13(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.
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of __________,
1999, among (i) Superior TeleCom Inc., a Delaware corporation (including any
successors or assigns, the "DEPOSITOR"), (ii) __________, a __________ banking
corporation, 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 banking corporation, as Delaware trustee
(in such capacity, the "DELAWARE TRUSTEE"), (iv) __________, an individual,
__________, an individual, and __________, an individual, each of whose address
is c/o Superior TeleCom Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (each, an
"ADMINISTRATIVE TRUSTEE," and, collectively, the "ADMINISTRATIVE TRUSTEES," and,
collectively with the Property Trustee and the Delaware Trustee, the
"TRUSTEES"), and (v) the several Holders as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor has entered into an Agreement and Plan of
Merger, dated as of October 21, 1998 (the "MERGER AGREEMENT"), with SUT
Acquisition Corp., a Delaware corporation and a subsidiary of Depositor
("PURCHASER"), and Essex International Inc., a Delaware corporation ("ESSEX"),
pursuant to which (i) Purchaser commenced, on October 28, 1998, a tender offer
to acquire up to 22,562,135 of the issued and outstanding shares of common
stock, par value $0.01 per share ("ESSEX COMMON STOCK"), of Essex for $32.00 per
share, net to the seller in cash, and (ii) following completion of the tender
offer, Purchaser will be merged with and into Essex, which will continue as the
surviving corporation, and the remaining outstanding shares of Essex Common
Stock will be converted into the right to receive the Preferred Securities (as
defined herein) issued hereby;
WHEREAS, the Depositor and certain of the Trustees have heretofore
duly declared and established a business trust, under the Delaware Business
Trust Act, by entering into a Declaration of Trust, dated as of ____________,
1998 (the "ORIGINAL DECLARATION"), and by executing and filing with the
Secretary of State of the State of Delaware a Certificate of Trust, filed on
___________, 1998 and attached hereto as Exhibit A (the "CERTIFICATE OF TRUST"),
the primary purpose of which is to issue such Preferred Securities;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, the Depositor and the Trustees desire to amend and restate
the Original Declaration in its entirety to provide for, among other things, the
issuance of the Preferred Securities and the Common Securities by the Trust to
the Depositor (and the subsequent delivery of such Preferred Securities by the
Depositor to holders of Essex Common Stock in accordance with the Merger
Agreement) in consideration for the acquisition by the Trust from the Depositor
of all of the right, title and interest in and to the Debentures (as such terms
are defined herein);
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of
the other parties hereto and for the benefit of the Holders of the Preferred
Securities, hereby amends and restates the Original Declaration in its entirety
and agrees as follows:
ARTICLE 1
DEFINED TERMS
Section 1.1. Definitions. For all purposes of this Declaration, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this
Declaration;
(d) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Declaration as a whole and not to any particular Article,
Section or other subdivision;
(e) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles," with respect to any
computation required or permitted hereunder, shall mean such accounting
principles which are generally accepted at the date or time of such computation;
(f) "or" is not exclusive;
(g) provisions apply to successive events and transactions; and
(h) each reference herein to a rule or form of the Commission shall mean
such rule or form and any rule or form successor thereto, in each case as
amended from time to time.
"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 and identified as such
to the Property Trustee or other holders of the Debentures 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 and identified
as such, to the Property Trustee or other holders of the Debentures, by the
Depositor on the Debentures.
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"ADMINISTRATIVE TRUSTEE" means each of __________, __________ and
__________, each solely in his capacity as Administrative Trustee of the Trust
heretofore formed and continued hereby 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
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; provided, however,
that beneficial ownership of 10% or more of the Voting Stock of an entity will
be deemed to be control; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"BANK" has the meaning specified in the preamble to this Declaration.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry by a court of competent jurisdiction of (i) a decree or order
for relief in respect of such Person in an involuntary case or proceeding under
United States bankruptcy laws, as now or hereafter constituted, or any other
applicable federal, state or foreign bankruptcy, insolvency or other similar law
or (ii) a decree or order adjudging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of, or in respect of, such Person under any United
States bankruptcy laws, as now or hereafter constituted, or any other applicable
federal, state or foreign bankruptcy, insolvency or similar law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such Person or of any substantial part of such Person's
property or assets, or ordering the winding-up or liquidation of the affairs of
such Person, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 180
consecutive days; or
(b) (i) the commencement by such Person of a voluntary case or proceeding
under United States bankruptcy laws, as now or hereafter constituted, or any
other applicable federal, state or foreign bankruptcy, insolvency or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent; or (ii) the consent by such Person to the entry of a decree or order
for relief in respect of such Person in an involuntary case or proceeding under
United States bankruptcy laws, as now or hereafter constituted, or any other
applicable federal, state or foreign bankruptcy, insolvency or other similar law
or to the commencement of any bankruptcy or insolvency case or proceeding
against such Person; or (iii) the filing by such Person of a petition or answer
or consent seeking reorganization or relief under United States bankruptcy laws,
as now or hereafter constituted, or any other applicable federal, state or
foreign bankruptcy, insolvency or other similar law; or (iv) the consent by such
Person to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
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trustee, sequestrator or similar official of such Person or any substantial part
of such Person's property or assets, or the making by such Person of an
assignment for the benefit of creditors; or (v) the taking of corporate action
by such Person in furtherance of any such actions.
"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.
"BOARD RESOLUTION" means a copy of the resolution certified by the
Secretary of the Depositor to have been duly adopted by the Board of Directors,
or such committee of the Board of Directors or officers of the Depositor to
which authority to act on behalf of the Board of Directors has been delegated,
and to be in full force and effect on the date of such certification, and
delivered to the Property Trustee.
"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 or the corporate trust office of the Indenture Trustee is closed for
business.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"CERTIFICATE OF TRUST" has the meaning specified in the preamble to this
Declaration.
"CHANGE IN 1940 ACT LAW" has the meaning specified in the definition of
Investment Company Event.
"CHANGE OF CONTROL" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than The Alpine Group, Inc., a Delaware
corporation, or its Affiliates (the "PERMITTED HOLDERS"), becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the total voting power represented
by the outstanding Capital Stock of the Depositor pursuant to which the holders
thereof have the general voting power under ordinary circumstances to elect at
least a majority of the Board of Directors (irrespective of whether or not at
the time the stock of any other class shall or might have voting power by reason
of the happening of any contingency) ("VOTING STOCK");
(b) the Depositor consolidates with, or merges with or into, another entity
or conveys, transfers, leases or otherwise disposes of all or substantially all
of its assets to any person or
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entity, or any entity consolidates with, or merges with or into, the Depositor,
in any such event pursuant to a transaction in which the outstanding Voting
Stock of the Depositor is converted into or exchanged for cash, securities or
other property, other than any such transaction where (I) the outstanding Voting
Stock of the Depositor is not converted or exchanged at all (except to the
extent necessary to reflect a change in the jurisdiction of incorporation of the
Depositor) or is converted into or exchanged for Voting Stock of the surviving
or transferee corporation and (II) immediately after such transaction, the
condition described in (A) above has not occurred with respect to the
outstanding Voting Stock of the surviving or transferee corporation;
(c) during any consecutive two-year period, individuals who at the
beginning of such period constituted the Board of Directors (together with any
new directors whose election by the Board of Directors or whose nomination for
election by the stockholders of the Depositor was approved by (x) a vote of at
least a majority of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved (as described in this clause (x) or in the following
clause (y)) or (y) the Permitted Holders) cease for any reason to constitute a
majority of the Board of Directors then in office; or
(d) the Depositor is liquidated or dissolved or adopts a plan of
liquidation or dissolution.
"CHANGE OF CONTROL OFFER" has the meaning specified in Section 4.5.
"CHANGE OF CONTROL PURCHASE DATE" has the meaning specified in Section 4.5.
"CHANGE OF CONTROL REDEMPTION PRICE" has the meaning specified in Section
4.5.
"CLOSING DATE" means the date of execution and delivery of this
Declaration.
"CLOSING PRICE", with respect to the Common Stock of the Depositor, means
for each day the last reported sales price, regular way or, in case no sale
takes place on such day, the average of the closing bid and asked prices regular
way on such day, in either case as reported on The New York Stock Exchange
Composite Tape, or, if the Common Stock is not listed or admitted to trading on
the NYSE, on the principal national securities exchange on which the Common
Stock is listed or admitted to trading, or, if not listed or admitted to trading
on any national securities exchange, on the Nasdaq National Market, or, if not
admitted for quotation on the Nasdaq National Market, the average of the high
bid and low asked prices on such day as recorded by The Nasdaq Stock Market, or,
if The Nasdaq Stock Market shall not have reported any bid and asked prices for
the Common Stock on such day, the average of the bid and asked prices for such
day as furnished by any NYSE member firm selected from time to time by the
Depositor for such purpose, or, if no such bid and asked prices can be obtained
from any such firm, the fair market value of the Common Stock on such day as
determined in good faith by the Board of Directors. Such determination by the
Board of Directors shall be conclusive.
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"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMMON SECURITIES CERTIFICATE" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit B.
"COMMON SECURITY" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount with respect to the assets of the Trust
of $50 and having the rights provided therefor in this Declaration, including
the right to receive Distributions and a Liquidation Distribution as provided
herein.
"COMMON STOCK" means common stock, par value $0.01 per share, of the
Depositor or shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Depositor and which are not
subject to redemption by the Depositor.
"CONVERSION AGENT" has the meaning specified in Section 4.3.
"CONVERSION DATE" has the meaning specified in Section 4.3.
"CONVERSION RATE" 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 hereof is located at
________________________________________.
"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.
"DEBENTURES" means $[171,765,650] aggregate principal amount of the
Depositor's 8 1/2% Convertible Subordinated Debentures due 2014 issued or to be
issued pursuant to the Indenture.
"DECLARATION" means this Amended and Restated Declaration of Trust, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Declaration, any such modification, amendment or supplement, the provisions
of the Trust Indenture Act that are
6
deemed to be a part of and govern this Declaration and any such modification,
amendment or supplement, respectively.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. xx.xx. 3801, et seq., as may be amended from time to time.
"DELAWARE TRUSTEE" means the Person identified as the "Delaware Trustee" in
the preamble to this Declaration solely in its capacity as Delaware Trustee of
the Trust heretofore formed and continued hereby 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.
"DIRECT ACTION" has the meaning specified in Section 6.9.
"DISTRIBUTION DATE" has the meaning specified in Section 4.1(a).
"DISTRIBUTIONS" means amounts payable in respect of the Trust Securities as
provided in Section 4.1. Distributions include, but are not limited to,
Additional Sums and Additional Amounts.
"EARLY DISSOLUTION EVENT" has the meaning specified in Section 9.2.
"ESSEX" has the meaning specified in the preamble to this Declaration.
"ESSEX COMMON STOCK" has the meaning specified in the preamble to this
Declaration.
"EVENT OF DEFAULT" means the occurrence of a Debenture Event of Default.
"EXCHANGE ACT" means the Securities Exchange Act f 1934, as amended, and
the rules and regulations promulgated thereunder.
"EXCHANGE NOTICE" has the meaning specified in Section 4.4(b).
"EXPIRATION DATE" has the meaning specified in Section 9.1.
"GUARANTEE" means the Guarantee Agreement executed and delivered by the
Depositor and ____________________, a __________ banking corporation, as
guarantee trustee, contemporaneously with the execution and delivery of this
Declaration, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Trust Security
or Securities is registered in the Securities Register, such Person being a
beneficial owner within the meaning of the Delaware Business Trust Act.
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"INDENTURE" means the Indenture, dated as of __________, 1999, between the
Depositor and the Indenture Trustee, relating to the Debentures, as amended or
supplemented from time to time.
"INDENTURE TRUSTEE" means ____________________, a __________ banking
corporation, as trustee under the Indenture, until a successor Indenture Trustee
shall have become such pursuant to the applicable provisions of the Indenture,
and thereafter "Indenture Trustee" shall mean such successor trustee and shall
include each Person who is then an Indenture Trustee hereunder if at any time
there is more than one such Person.
"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
recognized national tax and securities practice (which opinion 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 hereof.
"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 $50 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.
"LIQUIDATION DISTRIBUTION" has the meaning specified in Section 9.4(d).
"MERGER AGREEMENT" has the meaning specified in the preamble to this
Declaration.
"1940 ACT" means the Investment Company Act of 1940, as amended, and the
rules and regulations promulgated thereunder.
"NOTICE OF CONVERSION" means the notice given by a Holder of Trust
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Holder's Trust Securities 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 D.
"NYSE" means the New York Stock Exchange.
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"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer or the Secretary of the Depositor, and delivered to the
Property Trustee. The officer signing an Officer's Certificate given pursuant to
Section 8.15 shall be the principal executive, financial or accounting officer
of the Depositor. Any Officer's Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration shall include:
(a) a statement that each officer signing the Officer's Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officer's 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 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 Trust Securities, the following cash redemption prices per share, plus an
amount per share in cash equal to all accumulated and unpaid Distributions on
such share, if any, pro rata to the date fixed for redemption if redeemed during
the twelve-month period beginning ___________ [the first day after the fourth
anniversary of the issue date of the trust preferred stock] of the year
specified below:
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Year Redemption Price
---- ----------------
[Assuming issuance of the trust preferred stock
occurs in 1999]
2003...................................................... $52.550
2004...................................................... $52.125
2005...................................................... $51.700
2006...................................................... $51.275
2007...................................................... $50.850
2008...................................................... $50.425
and thereafter............................................ $50.000
In the event of a redemption of Trust Securities as a result of an optional
redemption of Debentures pursuant to Section 11.7(b) of the Indenture, the
Optional Redemption Price shall be $52.975 per share, plus an amount per share
in cash equal to all accumulated and unpaid Distributions on such share, if any,
pro rata to the date fixed for redemption, provided that the product of (i) the
average Closing Price of a share of Common Stock, for any 10 consecutive trading
days preceding the date of such call for redemption, multiplied by (ii) the
Conversion Rate, shall have equaled or exceeded $65.00 per share.
"ORIGINAL DECLARATION" has the meaning specified in the recitals to this
Declaration.
"OUTSTANDING" when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Declaration, except:
(a) Trust Securities theretofore canceled by the Securities Registrar or
delivered to the Securities Registrar for cancellation 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; 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, unless proof satisfactory to the Property Trustee is presented that
any Trust Securities are held by Holders in whose hands such Trust Securities
are valid, binding and legal obligations of the Trust.
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, any 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
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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.
"PAYING AGENT" means any paying agent or co-paying agent appointed pursuant
to Section 5.9.
"PERMITTED HOLDERS" has the meaning specified in the definition of Change
of Control.
"PERSON" means any individual, corporation, partnership, joint venture,
trust, limited liability company, association, joint stock company,
unincorporated organization or government or any agency or political subdivision
thereof or other entity.
"PREFERRED SECURITIES CERTIFICATE" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit C.
"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 $50 and having the rights provided therefor in this Declaration,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"PROPERTY ACCOUNT" means a segregated, non-interest bearing corporate trust
account maintained by the Property Trustee with the Bank (or any successor
appointed by the Property Trustee) in its trust department for the benefit of
the Holders of the Trust Securities 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.
"PROPERTY TRUSTEE" means the Person identified as the "Property Trustee" in
the preamble to this Declaration solely in its capacity as Property Trustee of
the Trust heretofore formed and continued hereby and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"PURCHASER" has the meaning specified in the preamble to this Declaration.
"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, $50 per Trust
Security, plus accumulated and unpaid Distributions to the date of redemption.
"RELEVANT RECORD DATE" has the meaning specified in Section 4.1(d).
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"RESPONSIBLE OFFICER" means any officer within the Corporate Trust Office
of the Property Trustee with direct responsibility for the administration of
this Declaration and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 5.4.
"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 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 hereof, there is more than an
insubstantial risk in each case after the date hereof that (i) the Trust is, or
will be within 90 days of the date thereof, subject to United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest paid by the Depositor on the Debentures is not, or within 90 days of
the date thereof will not be, deductible by the Depositor when paid, in whole or
in part, for United States federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"TRUST" means the Delaware business trust heretofore formed and
continued hereby and identified on the cover page of this Declaration.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbb), as amended and as in force at the date as of which this
instrument was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"TRUST PROPERTY" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Property 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 for the benefit of the Securityholders.
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"TRUST SECURITY" means any one of the Common Securities or the Preferred
Securities.
"TRUST SECURITIES CERTIFICATE" means any one of the Common Securities
Certificate or the Preferred Securities Certificates.
"TRUSTEES" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
"VOTING RIGHTS TRIGGERING EVENT" has the meaning specified in Section
6.2(a).
"VOTING STOCK" has the meaning specified in the definition of Change of
Control.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
Section 2.1. Name. The Trust heretofore formed and continued hereby shall
be known as "SUPERIOR TRUST I", as such name may be modified from time to time
by the Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is
____________________, or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Securityholders and the
Depositor. The principal executive office of the Trust is c/o Superior TeleCom
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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; provided, however, that such expenses paid by any Trustee shall have
been paid in accordance with the limitations enumerated in Section 2.5 hereof.
The Depositor shall make no claim upon the Trust Property for the payment of
such expenses.
Section 2.4. Subscription and Purchase of Debentures; Issuance of Trust
Securities. Contemporaneously with the execution and delivery of this
Declaration, the Administrative Trustees, on behalf of the Trust, shall
subscribe for and purchase from the Depositor the Debentures, registered in the
name of the Property Trustee (in its capacity as such), having an aggregate
principal amount equal to $[171,765,650], and in satisfaction of the purchase
price thereof, an Administrative Trustee, on behalf of the Trust, shall execute
in accordance with Section 5.2 and deliver to the Depositor (i) Preferred
Securities Certificates, to be issued and
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delivered to holders of the outstanding shares of Essex Common Stock in
accordance with the procedures described in Section 2.07 of the Merger
Agreement, in an aggregate amount of [3,332,254] Preferred Securities having an
aggregate Liquidation Amount of $[166,612,700] and (ii) a Common Securities
Certificate, registered in the name of the Depositor, in an amount of [103,059]
Common Securities having an aggregate Liquidation Amount of $[5,152,950].
Section 2.5. Declaration of Trust; Intent Clause. The exclusive purposes
and functions of the Trust are (a) to issue the Trust Securities in
consideration for the Debentures, (b) to distribute the Trust's income as
provided in this Declaration and (c) to engage in only those other activities
necessary or incidental thereto, including, without limitation, those activities
specified in Sections 2.6(a), 2.6(c), 8.1 and 8.3. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, mortgage or
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. It is the intent of the parties
hereto that the Trust qualify as a grantor trust for United States federal
income tax purposes. Securityholders, by their receipt of Trust Securities in
accordance with the terms of the Merger Agreement, agree to treat the Trust as
such in all tax and accounting filings. Any ambiguity in this Agreement shall be
interpreted in a manner consistent with such classification. 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 of, 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 a Trustee of the Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust Act. In the
event the Delaware Trustee shall at any time be required to take any action or
perform any duty under this Declaration, the Delaware Trustee shall be entitled
to the benefits of Sections 8.1 and 8.3. No implied covenants or obligations
shall be read into this Declaration against the Delaware Trustee.
Section 2.6. Authorization to Enter into Certain Transactions. (a) The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Declaration. Subject to the limitations set forth in Section 2.5 and
paragraph (b) of this Section 2.6, and in accordance with the following
provisions (i) and (ii), the Property Trustee and the Administrative Trustees
shall have the exclusive power and authority, and are hereby authorized and
directed to, cause the Trust to engage in the following activities:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority and is hereby authorized and directed to act on behalf
of the Trust with respect to the following matters:
(A) to execute, deliver and issue the Trust Securities;
provided, however, that the Trust may issue no more than one series
of Preferred Securities
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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, provided, further, that 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 acquire the Debentures as provided herein; provided,
however, that the Administrative Trustees shall cause legal title to
the Debentures to be held of record in the name of the Property
Trustee for the benefit of the Securityholders;
(C) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, any agreement or instrument
(including, without limitation, such certificates and cross-receipts
as may be necessary in connection with the issuance of the Trust
Securities and the purchase of the Debentures) as such
Administrative Trustee deems necessary or incidental to the purposes
and function of the Trust;
(D) to assist in the qualification of this Declaration as a
trust indenture under the Trust Indenture Act, and to cause the
Trust to take any action deemed in such Administrative Trustee's
discretion to be necessary, advisable or convenient to comply with
the Trust's obligations under the Trust Indenture Act;
(E) to appoint a Paying Agent, Conversion Agent, authenticating
agent and a Securities Registrar in accordance with this
Declaration;
(F) to the extent provided in this Declaration, 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) 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; and
(H) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine in their
discretion is necessary, advisable or convenient to give effect to
the terms of this Declaration, including, but not limited to:
(i) causing the Trust not to be deemed to be an "investment
company" required to be registered under the 1940 Act;
(ii) causing the Trust not to be classified for United
States federal income tax purposes as a corporation; and
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(iii) 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, except as otherwise provided in
Section 10.2(a).
(ii) As among the Trustees, the Property Trustee shall have the
power and authority and is hereby authorized and directed to act on behalf of
the Trust with respect to the following matters:
(A) the establishment of the Property Account;
(B) to authenticate Preferred Securities delivered to it for
authentication by or on behalf of an Administrative Trustee;
(C) the receipt of and taking title to the Debentures;
(D) the collection in the Property Account of interest,
principal and any other payments made in respect of the Debentures;
(E) the distribution from the Trust Property of amounts owed to
the Securityholders in respect of the Trust Securities pursuant to
this Declaration;
(F) the exercise of all of the rights, powers and privileges of
a holder of the Debentures;
(G) 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;
(H) the distribution of the Trust Property in accordance with
the terms of this Declaration;
(I) to the extent provided in this Declaration, the winding up
of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of the State of Delaware;
(J) the taking of any action incidental to the foregoing
(including executing any certificate or acknowledgment of the
Property Trustee's receipt of the Debentures) as the Property
Trustee may from time to time determine is necessary or advisable to
give effect to the terms of this Declaration and protect and
conserve the Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on any
particular Securityholder);
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(K) subject to this Section 2.6(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority
of the Administrative Trustees set forth in Section 2.6(a)(i);
(L) to act as Paying Agent, Conversion Agent and/or Securities
Registrar to the extent appointed as such hereunder; and
(M) to appoint an authenticating agent in accordance with this
Declaration.
(b) So long as this Declaration remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trust shall not, the Trustees shall not and the
Administrative Trustees 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 and the Trust Securities), acquire any investments or engage in
any activities not authorized by this Declaration, (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Securityholders, except as expressly
provided herein, (iii) take any action that, to such Trustee's actual knowledge,
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, or (vii) issue any securities or
other evidences of beneficial ownership of, or 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 interests of the Trust or the Securityholders in
their capacity as Securityholders.
(c) In connection with the issue 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 are hereby ratified and confirmed in all respects):
(i) to cause the Trust to file, at the expense of the Depositor,
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;
(ii) 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 which 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;
17
(iii) to the extent the Administrative Trustees deem 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 Exchange Act, including any amendments
thereto (it being understood that neither the Trust nor the
Depositor has any obligation under the Indenture, the Merger
Agreement or the Declaration to register any Trust Securities under
the Exchange Act);
(iv) to cause the Trust to enter into, and execute, deliver and
perform on behalf of the Trust, any agreements as may be necessary
or incidental to the purposes and functions of the Trust; 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 be 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, 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).
Section 2.7. Assets of Trust. The assets of the Trust shall consist of only
the Trust Property.
Section 2.8. 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. The
Securityholders 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
PROPERTY ACCOUNT
Section 3.1. Property Account. (a) On or prior to the Closing Date, the
Property Trustee shall establish the Property Account. The Property Trustee and
any agent of the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Property Account for the purpose of making
deposits in and withdrawals from the Property Account in
18
accordance with this Declaration. All monies and other property deposited or
held from time to time in the Property Account shall be held by the Property
Trustee in the Property 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 Property 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
Property 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 will
accumulate, without interest, from __________, 1999 [the issue date of the trust
securities], or the most recent Distribution Date to which Distributions have
been paid in full, and, except in the event that the Depositor exercises its
right to defer the payment of amounts due under the Debentures pursuant to the
Indenture, shall be payable quarterly in arrears on __________, __________,
__________ and __________ [the 1st or 15th day of the month in which the issue
date occurs and the third, sixth and ninth months thereafter] of each year,
commencing on __________, 1999 [the first Distribution Date after the issue
date] (which dates correspond to the interest payment dates on the Debentures),
to the holders of record of the Trust Securities on the Relevant Record Date,
when, as and if available for payment by the Property Trustee, as further
described in paragraph (c) of this Section 4.1. In the event any date on which
Distributions are payable on the Trust Securities is not a Business Day, the
payment of such Distributions payable on such date shall be made on the next
succeeding day that is a Business Day and without any additional Distributions
or other payment in respect of any such delay, except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the relevant Distribution payment date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"DISTRIBUTION DATE"). The right of any Holder to receive payment of a
Distribution on any Distribution Date shall be subject to the provisions of
Section 2.07(c) of the Merger Agreement.
(b) The Trust Securities represent undivided beneficial interests in the
Trust Property, and the Distributions on the Trust Securities shall be payable
at the rate of 8 1/2% per annum of the Liquidation Amount of the Trust
Securities. 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
three months, Distributions shall reflect interest on Debentures computed on the
basis of the actual number of elapsed days in such period based on 30-day
months. The amount of Distributions payable for any period shall include any
accrued and unpaid Additional Sums and Additional Amounts, if any.
19
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Property Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds actually received by the Property
Trustee and then on hand and available in the Property Account for the payment
of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution
Date or Redemption Date, if applicable, 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 or
Redemption Date (the "RELEVANT RECORD DATE"). Subject to Section 4.6 hereof, all
Distributions shall be made pro rata.
Section 4.2. Redemption. (a) Upon an optional redemption (as provided for
in the Indenture) of Debentures, the proceeds from such redemption to the extent
actually received by the Property Trustee 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, pro rata, having an
aggregate Liquidation Amount equal to the aggregate principal amount of the
Debentures so redeemed by the Depositor, at the Redemption Price. The Trust
shall not redeem less than all of the Trust Securities at any time Outstanding
until all accrued and unpaid Distributions upon all Preferred Securities then
Outstanding shall have been paid.
(b) Notice of any redemption of Trust Securities shall be prepared by or on
behalf of the Administrative Trustees and delivered to the Property Trustee, and
shall then be given by the Property Trustee by first-class mail, postage
prepaid, mailed to the Depositor and each Holder of Trust Securities to be
redeemed not less than 30 nor more than 60 days prior to the Redemption Date, 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 applicable 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 in accordance with Section
4.2(e);
(v) that a Holder of Trust Securities who desires to convert such Trust
Securities called for redemption must satisfy the requirements for
conversion contained in Section 4.3 below, (B) the Conversion Rate and (C)
that the right of Holders of Trust
20
Securities being redeemed to exercise their conversion right shall
terminate as to such Trust Securities at the close of business on the date
that is 10 days prior to the Redemption Date (provided that no default in
the payment of the Redemption Price or the Optional Redemption Price, as
the case may be, shall have occurred and be continuing);
(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
(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) Any notice which is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder of Trust Securities
receives such notice; and failure to give such notice by mail, or any defect in
such notice, to the Holders of any Trust Securities designated for redemption
shall not affect the validity of the proceedings for the redemption of any other
Trust Securities.
(d) 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. Redemption
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 actually received by the Property
Trustee and then on hand and available in the Property Account for the payment
of such Redemption Price or the Optional Redemption Price, as the case may be,
and if the Trust does not have sufficient funds, then such funds shall be
applied to redeem such Trust Securities as the Property Trustee may select, pro
rata, by lot or in such other manner as the Property Trustee determines.
(e) If the Property Trustee gives a notice of redemption in respect of any
Trust Securities, then, by 12:00 noon, New York City time, on the Redemption
Date, subject to Section 4.2(d), the Property Trustee shall 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 Trust Securities 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 Trust Securities Certificates. On or
after the Redemption Date, each Holder of Trust Securities called for redemption
shall surrender the Trust Securities Certificate (or Certificates) evidencing
such Trust Securities to the Paying Agent at the place designated in the notice
of redemption and shall thereupon be entitled to receive payment of the
Redemption Price or the Optional Redemption Price, as the case may be. If fewer
than all the Trust Securities represented by any such surrendered Trust
Securities Certificate (or Certificates) are redeemed, a new Trust Securities
Certificate shall be issued representing the unredeemed Trust Securities. If, on
the Redemption Date, funds necessary for the redemption shall be available
therefor and shall have been irrevocably deposited as provided above, then,
notwithstanding that the Trust
21
Securities Certificates evidencing Trust Securities so called for redemption
shall not have been surrendered, the Distributions with respect to the Trust
Securities so called shall cease to accrue after the Redemption Date, the Trust
Securities shall no longer be deemed Outstanding, the Holders thereof shall
cease to be Securityholders, and all rights whatsoever with respect to the Trust
Securities so called for redemption (except the right of the Holders to receive
the Redemption Price or the Optional Redemption Price, as the case may be,
without interest, upon surrender of their Trust Securities Certificates
therefor) shall terminate. Any monies deposited with the Paying Agent pursuant
to this paragraph and unclaimed at the end of one year from the Redemption Date
shall, to the extent permitted by law, be returned to the Trust, after which the
Holders of Trust Securities so called for redemption shall look only to the
Trust for the payment thereof. In the event that any date fixed for redemption
of Trust Securities 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 shall
be made on the next succeeding day which is a Business Day (without interest or
other payment in respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date.
(f) If less than all the Outstanding Preferred Securities are to be
redeemed on a Redemption Date, then 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, pro rata, by lot or by such other method as the Property
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to $50 or an integral multiple of $50 in
excess thereof) of the Liquidation Amount of the Preferred Securities. The
Property Trustee shall promptly notify the Securities Registrar and the
Conversion Agent (unless the Property Trustee is then serving as the Securities
Registrar and Conversion Agent) in writing of the Preferred Securities selected
for partial redemption and, in the case of any Preferred Securities selected for
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Declaration, unless the context otherwise requires, all provisions relating
to the redemption of Trust Securities shall relate, in the case of any Trust
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Trust Securities which has been or is to be redeemed. In
the event of any redemption in part, the Trust shall not be required to (i)
issue, or register the transfer of or exchange of, any Preferred Security during
a period beginning at the opening of business 15 days before any selection of
the Preferred Securities to be redeemed and ending at the close of business on
the earliest date in which the relevant notice of redemption is deemed to have
been given to all Holders of Preferred Securities to be so redeemed pursuant to
Section 10.8 or (ii) register the transfer of or exchange of 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.
(g) This Section 4.2 does not apply to any redemption of the Debentures
pursuant to Section 11.9 of the Indenture, which redemption is the subject of
Section 4.5.
Section 4.3. Conversion. The Holders of Trust Securities, subject to this
Section 4.3, shall have the right at any time after six months following the
first date of original issuance of
22
the Trust Securities, but not later than the close of business on the date which
is 10 days preceding the date fixed for redemption thereof in any notice of
redemption given pursuant to the provisions of Section 4.2(b) hereof if there is
no default in payment of the Redemption Price or Optional Redemption Price, as
the case may be, at their option, to cause the Conversion Agent to convert any
or all of their 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:
(a) The Trust Securities will be convertible into fully paid and
nonassessable shares of Common Stock (and, if applicable, other securities, cash
or property) pursuant to the Holder's direction to the Conversion Agent to
exchange such Trust Securities for a portion of the Debentures equal in
principal amount to the aggregate Liquidation Amount of the Trust Securities to
be converted, and to immediately convert such amount of Debentures into that
number of fully paid and nonassessable shares of Common Stock (calculated to the
nearest 1/100th of a share) as shall be equal to the Conversion Rate in effect
at the time of conversion. Trust Securities may initially be converted into full
shares of Common Stock at the rate of .8929 shares of Common Stock for each
Trust Security, subject to the adjustments set forth in Sections 13.3 and 13.4
of the Indenture (the "CONVERSION RATE").
(b) 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 (in substantially the form of Exhibit D hereto) to convert Trust
Securities on behalf of such Holder, together with Trust Securities Certificates
representing Trust Securities to be converted, duly endorsed in blank or
accompanied by proper instruments of transfer. The Notice of Conversion shall
(i) 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 (ii) direct the Conversion Agent (a) to exchange such Trust
Securities for a portion of the Debentures equal in principal amount to the
aggregate Liquidation Amount of the Trust Securities to be converted (at the
Conversion Rate) and (b) to immediately convert such Debentures, on behalf of
such Holder, into Common Stock and, if applicable, other securities, cash or
property (at the Conversion Rate). 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 4.3. The Conversion Agent shall thereupon notify the Depositor of the
Holder's election to convert such Debentures into shares of Common Stock.
(c) Except as described herein or in the Indenture, no payment or
adjustment is to be made on conversion for accrued and unpaid Distributions on
the Trust Securities, including as a result of the Depositor's exercise of its
right to defer payment of amounts due under the Debentures pursuant to the
Indenture or otherwise, or for dividends on the Common Stock issued on
conversion. The Holder of record of Trust Securities on a Relevant Record Date
with respect to the payment of a Distribution on the Trust Securities will be
entitled to receive the Distribution on such Trust Securities on the
corresponding Distribution Date notwithstanding the conversion of such Trust
Securities after such Relevant Record Date or any default by the Trust
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in the payment of the Distribution on that Distribution Date. Notwithstanding
the foregoing, Trust Securities surrendered for conversion during the period
from the close of business on any Relevant Record Date for the payment of a
Distribution on the Trust Securities to the opening of business on the
corresponding Distribution Date (except Trust Securities called for redemption
on a Redemption Date during such period) must be accompanied by payment by the
Holder of record on the Relevant Record Date of an amount equal to the
Distribution payable on such Distribution Date. The Distribution with respect to
Trust Securities called for redemption on a Redemption Date during the period
from the close of business on a Relevant Record Date with respect to the payment
of a Distribution on the Trust Securities to the opening of business on the
corresponding Distribution Date will be payable on that Distribution Date to the
Holder of record of such Trust Securities on such Relevant Record Date
notwithstanding the conversion of the Trust Securities after the Relevant Record
Date and prior to the Distribution Date, and the Holder of record of such Trust
Securities on such Relevant Record Date need not include a payment of such
Distribution amount upon surrender of such Trust Securities for conversion.
Holders of record of Trust Securities on a Relevant Record Date with respect to
the payment of a Distribution on the Trust Securities who convert their Trust
Securities on or after the corresponding Distribution Date will receive the
Distribution payable by the Trust on that date and need not include payment in
the amount of the Distribution upon surrender of such Trust Securities for
conversion.
(d) Trust Securities shall be deemed to have been converted upon the
surrender of Trust Securities Certificates representing such Trust Securities
(the "CONVERSION DATE"). On the Conversion Date, the Person or Persons
converting shall be deemed to be the holder or holders of record of the Common
Stock issuable upon conversion of the Debentures, and all rights with respect to
the Trust Securities surrendered shall forthwith terminate except the right to
receive the Common Stock or other securities, cash or other property as provided
herein or in the Indenture (including the provisions of Section 4.3(c)). As
promptly as practicable on or after the Conversion Date, the Depositor shall
issue and deliver 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 in accordance
with Section 4.3(f), and the Conversion Agent shall distribute such certificate
or certificates to such Person or Persons.
(e) Each Holder of a Trust Security by its acceptance thereof initially
appoints the Property Trustee as conversion agent (the "CONVERSION AGENT") for
the purpose of effecting the conversion of Trust Securities in accordance with
this Section 4.3. In effecting the conversion described in this Section 4.3, the
Conversion Agent shall be acting as agent of the Holders of Trust Securities
directing it to effect such conversion. The Conversion Agent is hereby
authorized (i) to 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 4.3 and (ii) to 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 4.3 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 Indenture
Trustee.
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(f) 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 product of
(i) the Closing Price of a share of Common Stock on the last trading day before
the Conversion Date and (ii) such fraction of a share, and the Conversion Agent
will in turn make such payment to the Holder or Holders of Trust Securities so
converted.
(g) 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 Declaration or otherwise require the Property Trustee or the Trust to pay
any amounts on account of such withholdings, except that such amounts will not
be withheld if Securityholders satisfy the Property Trustee in its sole
discretion that no taxes are due.
(h) The provisions of this Declaration, including Sections 8.1, 8.3 and
8.6, shall apply to the Property Trustee also in its capacity as Conversion
Agent.
Section 4.4. Special Event Exchange. (a) If a Special Event shall occur and
be continuing, the Administrative Trustees 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 to dissolve the Trust; provided, however, that, in the case of a
Tax Event, the Depositor shall have the right to 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 such that the net
amount received by Holders of Trust Securities not so exchanged in respect of
Distributions is not reduced as a result of such Tax Event, and shall not have
revoked any such election or failed to make such payments.
(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, postage prepaid, 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 Securities Register. Each Exchange Notice shall state: (A) the
exchange date; (B) the aggregate Liquidation Amount of the Trust Securities to
be exchanged and the aggregate principal amount of 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 Securities 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.
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(c) In the event that fewer than all the Outstanding Preferred Securities
are to be exchanged, then, on the exchange date, 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 (based on Liquidation Amounts). 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
Administrative Trustees shall prepare and the Property Trustee shall
authenticate and deliver to such Holder, without service charge, a new Preferred
Securities Certificate or Certificates in aggregate stated Liquidation Amount
equal to, and in exchange for, the unexchanged 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) the Preferred Securities 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 (ii) 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 Declaration pursuant to
Section 10.11 of this Declaration, 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 or as set forth in
this Declaration or otherwise require the Property Trustee or the Trust to pay
any amounts on account of such withholdings.
Section 4.5. No Sinking Fund; Redemption upon Change of Control.
(a) Subject to Section 4.5(b), the Preferred Securities shall not be
subject to the operation of a purchase, retirement or sinking fund.
(b) If the Trust is the record holder of the Debentures, then, in the event
of a Change of Control, the Trust will, to the extent of funds legally available
therefor and subject to the prior payment in full of all other obligations of
the Trust and the Depositor that are then due or become due as a result of such
Change of Control (or similar event), make an offer to redeem (the "CHANGE OF
CONTROL OFFER") all of the then Outstanding Preferred Securities at a purchase
price in cash equal to 101% of the Liquidation Amount thereof, plus accrued and
unpaid Distributions, to the date of redemption. Notice of the Change of Control
Offer shall be prepared by or on behalf of the Administrative Trustees and
delivered to the Property Trustee, and shall be given by the Property Trustee
within 30 days following the occurrence of any Change of Control, by first-class
mail, postage prepaid, to the Holders of record of the Preferred Securities,
addressed to such Holders at their last address as shown on the Securities
Register.
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Such notice shall state: (i) that a Change of Control has occurred and that the
Holders of the Preferred Securities have the right to require the Trust to
redeem all or a portion of their Preferred Securities at a purchase price in
cash equal to 101% of the Liquidation Amount thereof, plus accrued and unpaid
Distributions (the "CHANGE OF CONTROL REDEMPTION PRICE") to the date of purchase
(the "CHANGE OF CONTROL PURCHASE DATE"), which shall be a Business Day,
specified in such notice, that is not earlier than 30 days or later than 60 days
from the date such notice is mailed; (ii) the then effective Conversion Rate;
(iii) that payment will be made upon presentation and surrender of the Preferred
Securities Certificates; (iv) that accrued but unpaid Distributions to the
Change of Control Purchase Date will be paid; (v) that on and after the Change
of Control Purchase Date, Distributions will cease to accrue on such Preferred
Securities so redeemed; and (vi) such other information as is specified in
Section 4.2(b).
(c) Any notice of a Change of Control Offer which is mailed as herein
provided shall be conclusively presumed to have been duly given, whether or not
a Holder of Preferred Securities receives such notice. On or after the date
fixed for redemption as stated in such notice of a Change of Control Offer, each
Holder of Preferred Securities electing to accept such Change of Control Offer
shall surrender the Preferred Securities Certificate (or Certificates)
evidencing such Preferred Securities to the Paying Agent at the place designated
in such notice and shall thereupon be entitled to receive payment of the Change
of Control Redemption Price. If the Holder elects to have redeemed fewer than
all the Preferred Securities represented by any such surrendered Preferred
Securities Certificate (or Certificates), a new Preferred Securities Certificate
shall be issued representing the unredeemed Preferred Securities.
(d) The Preferred Securities redeemed on each Change of Control Purchase
Date shall be redeemed at the Change of Control Redemption Price with the
proceeds from the contemporaneous redemption of Debentures, as provided in
Section 11.9(d) of the Indenture, which proceeds shall be deposited with the
Paying Agent by the Property Trustee promptly upon their receipt. Redemption of
Preferred Securities shall be made and the Change of Control Redemption Price
shall be payable on each Change of Control Purchase Date only to the extent that
the Trust has funds actually received by the Property Trustee and then on hand
and available in the Property Account for the payment of such Change of Control
Redemption Price, and if the Trust does not have sufficient funds, then such
funds shall be applied to redeem such Preferred Securities as the Property
Trustee may select, pro rata, by lot or in such other manner as the Property
Trustee determines.
Section 4.6. Subordination of Common Securities. On any Distribution Date,
no payment of any Distribution on any Common Security shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all
Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto 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 on Preferred Securities then due and payable. No
redemption, repurchase, exchange or conversion of the Common Securities shall be
effected at any time that Preferred Securities are Outstanding.
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Section 4.7. Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto at such address as shall appear on the Securities Register. Payments, if
any, in respect of the Common Securities shall be made in such manner as shall
be mutually agreed between the Property Trustee and the Holder of the Common
Securities.
Section 4.8. Tax Returns and Reports. The Administrative Trustees shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared 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 Holder a Form 1099
or the appropriate Internal Revenue Service form required to be furnished to
such Holder or the information required to be provided on such form. The
Administrative Trustees shall provide the Depositor and the Property Trustee
with a copy of all such returns, reports and schedules promptly after such
filing or furnishing. The Administrative Trustees and the Property Trustee shall
comply with United States federal withholding and backup withholding tax laws
and information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section 4.9. 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) imposed on the Trust by the
United States or any other taxing authority.
Section 4.10. Payments under Indenture. Any amount payable hereunder to any
Holder of Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant to Section 5.8
of the Indenture in accordance with the terms of Section 6.8 hereof.
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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 $50 Liquidation Amount
and integral multiples of $50 in excess thereof, and the Common Securities
Certificate shall be issued in an aggregate Liquidation Amount of $[5,152,950].
The Depositor directs that the Preferred Securities Certificates shall not be
registered in the name of the Depositor, but that such Preferred Securities
Certificates shall be issued and delivered to holders of the outstanding shares
of Essex Common Stock in accordance with the procedures described in Section
2.07 of the Merger Agreement. The Preferred Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee and shall be authenticated by the Property Trustee. The
Common Securities Certificate shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
such signatures were affixed, authorized to sign on behalf of the Trust, shall
be validly issued and entitled to the benefit of this Declaration,
notwithstanding the fact 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.
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 Section 2.4, to be executed by an
Administrative Trustee on behalf of the Trust and delivered to or upon the
written order of an Administrative Trustee or authorized agent thereof without
further action by the Trust.
A Preferred Security Certificate shall not be valid until placement of the
appropriate authorized denomination thereon and authentication by the manual
signature of an authorized signatory of the Property Trustee and shall be dated
as of the date of such authentication. The signature shall be conclusive
evidence that the Trust Security Certificate has been authenticated under this
Declaration. Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Trust Security Certificates
for original issue.
The Property Trustee may appoint an authenticating agent acceptable to the
Administrative Trustees to authenticate Preferred Security Certificates. An
authenticating agent may authenticate Preferred Security Certificates whenever
the Property Trustee may do so. Each reference in this Declaration to
authentication by the Property Trustee includes authentication by
29
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;
Restrictions on Transfer. The Securities Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.8, a 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 (such register
is herein sometimes referred to as the "SECURITIES REGISTER"). The Property
Trustee shall be the initial Securities Registrar. The provisions of this
Declaration, including Sections 8.1, 8.3 and 8.6, shall apply to the Property
Trustee in its role as Securities Registrar.
Upon surrender for registration of transfer of any Preferred Security at an
office or agency of the Securities Registrar designated pursuant to Section 5.8
for such purpose, an Administrative Trustee 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 of the Securities Registrar. Whenever any Preferred Securities are so
surrendered for exchange, an Administrative Trustee 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 entitled to the same benefits under
this Declaration as the Preferred Securities surrendered upon such transfer or
exchange.
Every Preferred Security presented or surrendered for registration of
transfer or exchange shall 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 his 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 tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates, other than exchanges pursuant to Sections 4.2(d) and
4.4.
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
30
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 to
the Property Trustee for authentication in the case of the Preferred Securities
Certificates and delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, and the Property Trustee
shall authenticate, a new Trust Securities Certificate of like denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.5, 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 5.5 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.
The provisions of this Section 5.5 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Trust Securities.
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) 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 five Business Days before each Distribution Date, and (b) to
the Property Trustee, promptly 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, 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 or under the
Trust Securities, and the corresponding rights of the Property 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, 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.
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Section 5.8. Maintenance of Office or Agency. The Securities Registrar
shall maintain 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 ______________________________ 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 office or agency maintained by
the Securities Registrar.
Section 5.9. Appointment of Paying Agent. The Trust shall maintain an
office or agency (the "PAYING AGENT") where the Trust Securities may be
presented for payment. The Paying Agent shall make Distributions to
Securityholders from the Property 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 Property
Account for the purpose of making the Distributions referred to above. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Declaration in any material
respect. The Paying Agent shall initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
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, which is 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 this Declaration, including 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 Declaration to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.10. Ownership of Common Securities by Depositor. On the Closing
Date, the Depositor shall acquire and retain beneficial and record ownership of
the Common Securities. Except in connection with mergers or consolidations
provided for in Section 8.1 of the Indenture, any attempted transfer of the
Common Securities shall be void. The Administrative Trustees shall cause a
single Common Securities Certificate representing the Common Securities to be
issued to the Depositor containing a legend stating: "THIS COMMON SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT
32
PURSUANT TO SECTION 8.1 OF THE INDENTURE, DATED AS OF __________, 1999, BETWEEN
SUPERIOR TELECOM INC. AND ____________, AS INDENTURE TRUSTEE."
Section 5.11. 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 2.8, 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.
The Trust Securities shall have no preemptive or similar rights to subscribe for
additional Trust Securities and, when issued and delivered to Securityholders,
will be validly issued, fully paid and non-assessable beneficial interests in
the assets of 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;
AMENDMENT OF THE DECLARATION
Section 6.1. Limitations on Voting Rights. (a) Except as provided in this
Section 6.1 and Sections 8.9 and 10.2, in the Indenture, in the Guarantee and as
otherwise required by law or by the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, 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)(i) The Declaration may be amended from time to time by the Depositor
and the Trustees, without the consent of the Holders of the Preferred
Securities, (i) to cure any ambiguity, correct or supplement any provisions in
the Declaration that may be inconsistent with any other provisions, or to make
any other provisions with respect to matters or questions arising under the
Declaration consistent with the other provisions of the Declaration, (ii) to
modify, eliminate or add to any provision of the Declaration 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 (iii) to qualify or
maintain the qualification of the Declaration 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 Holder of Trust
Securities, and any amendments of the Declaration shall become effective when
notice thereof is given to the Holders of Trust Securities.
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(ii) The Declaration may be amended by the Depositor and the Trustees
with (A) the consent of Holders representing not less than a majority (based
upon Liquidation Amounts) of the Outstanding Trust Securities, acting as a
single class, and (B) receipt by the Trustees of an Opinion of Counsel having
a national tax and securities practice (which opinion shall not have been
rescinded) 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 exemption from the status of an "investment company"
under the 1940 Act; provided, however, that without the consent of each
Holder of Trust Securities, the Declaration may not be amended to (i) change
the amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii) restrict the
right of a Holder of Preferred Securities to institute suit for the
enforcement of any such payment on or after such date; provided, further,
that the voting rights of the Holders of the Common Securities may not be
amended without the consent of Holders of a majority in Liquidation Amount of
the Common Securities.
(iii) Subject to Section 8.2 hereof: (A) 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)(iii)(2) hereof
shall apply; and (B) 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 this Section 6.1(b)(iii)(1) shall
apply.
(1) 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 direct the exercise of any trust or power conferred upon the
Property Trustee under the Declaration, 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); provided that (x) such direction shall
not be in conflict with any rule of law or with this Declaration; (y) the
Property Trustee may take any other action deemed proper by the Property
Trustee which is not inconsistent with such direction; and (z) subject to
the provisions of Section 8.1, the Property Trustee shall have the right to
decline to follow such direction if the Property Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Property
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or would
involve the Property Trustee in personal liability. 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 Indenture Trustee
or executing any trust or power conferred on the Indenture Trustee with
respect to such Debentures, (B) waive any past default that 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
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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 Outstanding Trust Securities, voting together as a single
class); provided, however, that where the Indenture expressly provides
that a consent thereunder 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 each Holder of the Preferred Securities of any notice of
default received from the Indenture 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 Administrative Trustees and the Property Trustee 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 for United States federal income tax
purposes on account of such action.
(2) 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 direct the exercise of any trust or power conferred upon the
Property Trustee under the Declaration, 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); provided that (x) such direction shall
not be in conflict with any rule of law or with this Declaration; (y) the
Property Trustee may take any other action deemed proper by the Property
Trustee which is not inconsistent with such direction; and (z) subject to
the provisions of Section 8.1, the Property Trustee shall have the right to
decline to follow such direction if the Property Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Property
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or would
involve the Property Trustee in personal liability. 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 Indenture
Trustee, or executing any trust or power conferred on the Indenture Trustee
with respect to such Debentures, (B) waive any past default that 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
35
Event of Default shall occur and be continuing, shall be of the Holders of
all Outstanding Trust Securities, voting together as a single class);
provided, however, that where the Indenture expressly provides that a
consent thereunder 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 Common 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
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 Indenture
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 Administrative Trustees and the
Property Trustee 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 for United
States federal income tax purposes on account of such action.
(c) If any proposed amendment of the Declaration provides for, or the
Administrative Trustees and the Property Trustee otherwise propose to effect,
the dissolution, winding-up or termination of the Trust, other than pursuant to
the terms of this Declaration, then the Holders of Outstanding Preferred
Securities, as a class, will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the approval
of the Holders of a majority in aggregate Liquidation Amount of the Outstanding
Preferred Securities.
Section 6.2. Additional Voting Rights. (a) If (i) Distributions on the
Preferred Securities are in arrears and unpaid for six or more quarters (whether
or not consecutive); (ii) the Depositor fails to pay all amounts due on the
Debentures upon Maturity (as defined in the Indenture); or (iii) the Depositor
fails, pursuant to Section 4.5(b), to redeem all of the Preferred Securities
which the Holders thereof elect to tender pursuant to a Change of Control Offer,
then the number of directors constituting the Board of Directors will be
increased by two, the Holders of the then Outstanding Preferred Securities,
voting separately and as a class, shall have the right and power to designate
such two additional directors, and the Depositor shall cause such two additional
directors to be elected to the Board of Directors. Each such event described in
clause (i), (ii) or (iii) is a "VOTING RIGHTS TRIGGERING EVENT." A Voting Rights
Triggering Event shall not be deemed to have occurred if at the time of such
event there are less than 300,000 Preferred Securities then Outstanding.
(b) The voting rights set forth in Section 6.2(a) will continue until such
time as (x) in the case of a default in the payment of Distributions, all
Distributions in arrears on the Preferred Securities are paid in full in cash,
(y) in all other cases, any failure, breach or default giving rise to such
Voting Rights Triggering Event is remedied or waived by the Holders of a
majority of the Preferred Securities then Outstanding or (z) at any time there
are fewer than 300,000 Preferred Securities Outstanding, at which time the term
of any directors elected pursuant to the provisions of Section 6.2(a) shall
terminate and the number of directors constituting the Board of Directors shall
be decreased by two (until the occurrence of any subsequent Voting Rights
Triggering Event).
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(c) Any vacancy occurring in the office of a director designated by the
Holders of Preferred Securities may be filled by the remaining director
designated by the Holders of Preferred Securities unless and until the Holders
of Preferred Securities shall designate a director to fill such vacancy, which
director the Depositor shall cause to be elected to the Board of Directors.
Section 6.3. 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 Administrative Trustees pursuant to Section 10.8 to each
such Holder of record, at its registered address, at least 15 days and not more
than 90 days before the meeting. Whenever a vote, consent or approval of the
Holders is permitted or required under this Declaration or the rules of any
stock exchange on which the Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be given at a meeting of the
Holders. 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 6.4. Meetings of Holders of Preferred Securities. No annual meeting
of Holders of Preferred Securities is required to be held. The Administrative
Trustees or the Property Trustee may, at any time, call a meeting of the Holders
of Preferred Securities to consider and act on any matters as to which such
Holders are entitled to act under the terms of this Declaration or the rules of
any stock exchange on which the Preferred Securities are listed or admitted for
trading.
At any time after voting power to designate directors shall have become
vested and be continuing in the Holders of Preferred Securities pursuant to
Section 6.2(a), or if vacancies shall exist in the offices of directors
designated by such Holders, the Administrative Trustees or the Property Trustee
may, and upon the written request of the Holders of record of at least 25% of
the Preferred Securities then Outstanding addressed to such Trustee(s) shall,
call a special meeting of the Holders of Preferred Securities for the purpose of
designating such directors. If such meeting shall not be called by the
Administrative Trustees or the Property Trustee within 20 days after personal
service to such Trustee(s) at his or its address contained herein, then the
Holders of record of at least 25% of the Outstanding Preferred Securities may
designate in writing one of their members to call such meeting at the expense of
the Trust, and such meeting may be called by the Person so designated upon the
notice required by Section 6.3. Any Holder of Preferred Securities so designated
shall have, and the Trust shall provide, access to the lists of Securityholders,
subject to Section 6.9.
Holders of record of a majority of the Outstanding 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 a majority of the Outstanding Preferred Securities (based upon their
Liquidation Amount) shall constitute the action of such Securityholders, unless
otherwise provided.
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Section 6.5. Voting Rights. Securityholders shall be entitled to one vote
for each $50 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.6. 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 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. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution. Every
proxy shall be revocable at the pleasure of the Holder(s) executing it at any
time prior to its use by filing with the Administrative Trustees a written
revocation or a duly executed proxy bearing a later date or by attending the
meeting and voting in person. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall be governed by the
General Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders were stockholders of a Delaware corporation.
Section 6.7. 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) shall consent to the action in writing. Prompt notice of
the taking of action without a meeting shall be given to the Holders entitled to
vote who have not consented in writing.
Section 6.8. Record Date for Voting and Other Purposes; Discretion of
Property Trustee Relating to Meetings of Holders. 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, or for the purpose of any other action, the Property
Trustee on behalf of the Trust 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. Unless the Delaware Business Trust Act, this Declaration, the Trust
Indenture Act or the listing rules of any stock exchange on which the Preferred
Securities are then listed or trading otherwise provides, the Property Trustee,
in its sole discretion, shall establish all other provisions relating to
meetings of Holders, including notice of the time, place or purpose of any
meeting at which any matter is to be voted on by any Holders, waiver of such
notice, action by consent
38
without a meeting, the establishment of a record date, voting in person or by
proxy or any other matter with respect to the exercise of any such right to
vote.
Section 6.9. Acts of Securityholders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Declaration to be given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders 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 is or 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 signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Declaration and (subject to Section 8.1)
conclusive in favor of the Trustees, if made in the manner provided in this
Section 6.8.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act by the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustees or the
Trust in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a 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.
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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 proceed to enforce
such rights directly against the Depositor, subject to the terms of Article 5 of
the Indenture. 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 on 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.
If the Guarantee Trustee (as defined in the Guarantee) fails to enforce the
Guarantee, any Holder of the Preferred Securities 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, the Trust or any other Person. In addition, any Holder
of Preferred Securities shall have the right, which is absolute and
unconditional, to proceed directly against the Depositor to obtain payments
under the Guarantee, without first waiting to determine if the Guarantee
Trustee has enforced the Guarantee or instituting a legal proceeding against
the Trust, the Guarantee Trustee or any other Person.
Section 6.10. 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 banking corporation duly organized, validly
existing and in good standing under the laws of the State of __________;
(b) the Delaware Trustee is a 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 Declaration and has taken all necessary action to
authorize the execution, delivery and performance by it of this Declaration;
(d) this Declaration has been duly authorized, executed and delivered by
each of the Property Trustee and the Delaware Trustee and constitutes the valid
and legally binding agreement of the Property Trustee and the Delaware Trustee,
enforceable against each 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;
40
(e) the execution, delivery and performance by each of the Property Trustee
and the Delaware Trustee of this Declaration have been duly authorized by all
necessary corporate or other action on the part of the Property Trustee and the
Delaware Trustee and do not require any approval of stockholders of the Property
Trustee or the Delaware Trustee, and such execution delivery and performance
will not (i) violate either of the Property Trustee's or 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 which is not related to the transactions
contemplated by this Declaration and to which the Property Trustee or the
Delaware Trustee is a party or by which it is bound, or (ii) violate any law,
governmental rule or regulation of the United States or the State of Delaware,
as the case may be, governing the banking or trust powers of the 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;
(f) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Declaration nor the consummation of any
of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to, any Delaware or United States federal governmental authority or
agency under the laws of the United States or the State of Delaware governing
the banking or trust powers of the Property Trustee or the Delaware Trustee, as
the case may be;
(g) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Declaration.
Section 7.2. Representations and Warranties of Depositor. The Depositor
hereby represents and warrants for the benefit of the Securityholders that:
(a) the Trust Securities Certificates to be issued on behalf of the Trust
have been duly authorized and will be 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, and, subject to the terms
of the Merger Agreement, the Securityholders will be, as of the Closing Date,
entitled to the benefits of this Declaration; 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.
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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 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 and the Trust Indenture Act, and no implied covenants shall be read
into this Declaration against the Property Trustee. In case an Event of Default
has occurred (and 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
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 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 them. Whether or not herein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section
8.1. Nothing in this Declaration shall be construed to release the
Administrative Trustees 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 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. The provisions of this Declaration, 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) Subject to any Direct Action by Holders of Preferred Securities, 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 or, in the case of
the Property Trustee, in the Trust Indenture Act.
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(c) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effectiveness of Subsection (a) of this Section 8.1;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was made;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority of the
aggregate 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; and
(iv) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
(d) The Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and the Property 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 and the Trust Indenture Act.
(e) The Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree in writing 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 Property Account maintained by the Property
Trustee pursuant to Section 3.l and except to the extent otherwise required by
law.
Section 8.2. Notice of Defaults. (a) Within ten days after a Responsible
Officer shall obtain actual knowledge of the occurrence of any Event of Default,
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
Responsible Officer shall have actual knowledge that 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 (including Additional Sums and
Additional Amounts, if applicable) on any of the Debentures, the Property
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer in good faith determines that the withholding of such notice
is in the interests of the Holders of the Preferred Securities.
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(b) Within ten days after the receipt of written notice of the Depositor's
exercise of its right to defer the payment of interest on 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 of the aggregate Liquidation Amount of
Outstanding Preferred Securities may, by vote, on behalf of the Holders of all
of the Preferred Securities, waive any past 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 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
may only be waived by the vote of the Holders of the same proportion in
aggregate Liquidation Amount of the Preferred Securities that the relevant
Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
The provisions of Sections 6.1(b) and 8.2(d) 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 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, but no
such waiver shall extend to any subsequent or other default or 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 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 without
any further act, vote or consent of the Holders of the Common Securities.
(d) The Holders of a majority in aggregate Liquidation Amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Debenture
Event of Default:
(i) 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 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
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Default under the Declaration as provided below in this Section 8.2(d), the
Event of Default under the Declaration may only be waived by the vote of
the Holders of the same proportion in aggregate 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. In
such a case, 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 Preferred Securities to act on their behalf. The provisions of
Section 6.1(b) and 8.2(c) 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 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, 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 an 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. 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 and the
Preferred Securities, as permitted by the Trust Indenture Act.
Section 8.3. Certain Rights of Property Trustee. Subject to the provisions
of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation or instruction of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(b) if, (i) in performing its duties under this Declaration the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions in this Declaration the Property Trustee finds
the same ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Holders of Preferred
Securities are specifically entitled to vote under the terms of this
Declaration, the Property
45
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 and shall have no liability whatsoever for such action or inaction
except for its own bad faith, negligence or willful misconduct; 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
shorter period of time set forth in such notice (which to the extent practicable
shall not be less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this
Declaration as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
(c) if a Responsible Officer of the Property Trustee has obtained actual
knowledge that an Event of Default has occurred and is continuing and (i) in
performing its duties under this Declaration the Property Trustee is required to
decide between alternative courses of action or (ii) in construing any of the
provisions in this Declaration the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of this Declaration, then,
except as to any matter as to which the Holders of Preferred Securities are
specifically entitled to vote under the terms of this Declaration, the Property
Trustee may deliver a notice to the Holders of Preferred Securities requesting
written instructions of such Holders 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 a majority in interest of the Outstanding Preferred Securities
and shall have no liability whatsoever for such action or inaction; provided,
however, that if the Property Trustee does not receive such instructions of the
Holders of Preferred Securities within ten Business Days after it has delivered
such notice, or such shorter period of time set forth in such notice (which to
the extent practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Declaration as it shall deem advisable and in the best
interests of such Holders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;
(d) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Declaration shall be sufficiently evidenced by an Officer's
Certificate and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(e) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officer's Certificate and an Opinion of
Counsel which, upon receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
46
(f) 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
re-recording, re-filing or re-registration thereof;
(g) the Property Trustee may consult with counsel and other experts 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 or opinion of
such counsel and experts 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 or opinion; and the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this Declaration from
any court of competent jurisdiction;
(h) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Declaration at the request or
direction of any of the Securityholders pursuant to this Declaration, unless
such Securityholders shall have offered to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against the costs,
expenses (including reasonable attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and liabilities which
might be incurred by it in compliance with such request or direction, including
such reasonable advances as may be requested by the Property Trustee;
(i) the Property Trustee shall not be bound to make an investigation into
the facts or matters stated in any resolutions, certificate, statement,
instrument, opinion, report, notice, request, consent, direction, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless specifically requested and directed in writing to do so by
Holders of record of 25% or more of the Preferred Securities (based upon their
aggregate Liquidation Amount), but the Property Trustee may in its discretion
make such further inquiry or investigation into such facts or matters as it may
see fit;
(j) 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,
custodians, nominees or attorneys or an Affiliate, provided that the Property
Trustee shall be responsible for its own negligence with respect to the
selection of any agent or attorney appointed by it hereunder but shall not be
responsible for any misconduct or negligence on the part of such Person;
(k) whenever in the administration of this Declaration the Property Trustee
shall deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Property Trustee (i)
may request instructions from the Holders which instructions may only be given
by the Holders of the same proportion in Liquidation Amount of the Securities as
would be entitled to direct the Property Trustee under the terms of the
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 conclusively relying
on or acting in accordance with such instructions;
47
(l) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Declaration; and
(m) the Property Trustee shall not be liable for any action taken, suffered
or omitted to be taken by it in good faith, without negligence or willful
misconduct, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Declaration.
No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts, or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
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. The
Trustees make no representations as to the value or condition of the Trust
Property or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Declaration or the Trust Securities.
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 each of the Trustees from time to time such compensation for all
services rendered by such Trustee hereunder as the Depositor and such Trustee
may agree upon in writing 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 each
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith;
48
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) the Bank, (ii) each Trustee, (iii) any Affiliate of the Bank
or 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 (each 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, dissolution or termination of the Trust or any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim to the extent incurred by
such Indemnified Person by reason of its own negligence or willful misconduct
with respect to such acts or omissions;
(d) to the fullest extent permitted by applicable law, to advance, from
time to time, prior to the final disposition of any claim, demand, action, suit
or proceeding for which indemnification is authorized pursuant to subsection (c)
above, any expenses (including reasonable legal fees) incurred by an Indemnified
Person in defending such claim, demand, action, suit or proceeding upon receipt
by the Depositor of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in subsection (c) above. This
indemnification shall survive the termination of this Declaration.
(e) 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; and
(f) The obligations to indemnify and hold harmless, to advance expenses and
to provide reimbursement and pay compensation as set forth in this Section 8.6
shall survive the resignation or removal of the Property Trustee or the Delaware
Trustee and the satisfaction and discharge of this Declaration.
Section 8.7. Property Trustee Required; Eligibility of Trustees. (a) There
shall at all times be a Property Trustee, which is a corporation organized and
doing business under the laws of the United States of America or of any State,
Territory or the District of Columbia, authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by federal,
state, territorial or District of Columbia authority with respect to the Trust
Securities. The Property Trustee shall be a Person that is eligible pursuant to
the Trust Indenture Act to act as such and has a combined capital and surplus of
at least $100,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section 8.7, 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 8.7, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
49
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.8. Disqualification: Conflicting Interest. The Property Trustee
shall be subject to the provisions of Section 310(b) of the Trust Indenture Act.
Nothing herein shall prevent the Property Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act. The Indenture and the Guarantee shall
be deemed to be specifically described in this Declaration for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
Section 8.9. Resignation and Removal; Appointment of Successor. (a) Subject
to Sections 8.9(b) and 8.9(c), Trustees 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, (1) if the Property
Trustee or the Delaware Trustee, by the Administrative Trustees and (2) if
an Administrative Trustee, 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.
(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
50
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 Depositor 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 Trust
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 Administrative Trustees shall use their best efforts to promptly
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 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, 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
51
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or 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 all amounts due to it under this Declaration,
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, it 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 Trustee, the retiring
Trustee and each successor Trustee shall execute and deliver an amendment hereto
wherein each successor Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee and (b) shall add to or change any of
the provisions of this Declaration as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such relevant Trustees co-trustees, and upon the execution and
delivery of such amendment the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Trust or any successor Trustee, such retiring Trustee shall, upon
payment of all amounts due to it under this Declaration, duly assign, transfer
and deliver to such successor Trustee all Trust Property, all proceeds thereof
and money held by such retiring Trustee hereunder.
Upon request of any such successor Trustee, the Trust shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first or
second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 8.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee, or the Delaware Trustee or any
Administrative
52
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 any such Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of such
Trustee, shall be the successor of such Trustee hereunder, provided that 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 the Trust (or any such other
obligor).
Section 8.13. Reports by Property Trustee. (a) To the extent required by
the Trust Indenture Act, within 60 days after May 15 of each year commencing
with May 15, 1999 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 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 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 reports required by Section 8.13(b) 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
53
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 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 Officer's Certificate.
Section 8.16. Number of Trustees. (a) The number of Trustees shall be five,
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.
(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,
such vacancy shall be 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 Declaration),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Declaration.
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 2.6(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.
54
ARTICLE 9
DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
Section 9.1. Dissolution upon Expiration Date. Unless earlier dissolved,
the Trust shall automatically dissolve on __________, 2014 (the "EXPIRATION
DATE").
Section 9.2. Early Dissolution. The first to occur of any of the following
events is an "EARLY DISSOLUTION 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 pay any Additional Sums (in
accordance with Section 4.4) such that the net amount received by Holders of
Trust Securities not exchanged for Debentures 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;
(c) the redemption, conversion or exchange of all of the Trust Securities;
(d) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction; and
(e) receipt by the Property Trustee of written notice from the Depositor at
any time (which direction is optional and wholly within the discretion of the
Depositor) of its intention to dissolve the Trust and distribute the Debentures
in exchange for the Trust 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; and
(c) the discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to the
Trust or the Securityholders.
Section 9.4. Liquidation. (a) If an Early Dissolution Event specified in
clause (a), (b), (d) or (e) of Section 9.2 occurs or upon the Expiration
Date, the Trust shall be liquidated by the Administrative Trustees as
expeditiously as the Administrative Trustees determine to be possible by
distributing, after paying or making reasonable provision to pay all claims
and obligations of the Trust in accordance with Section 3808(e) of the
Business Trust Act, 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(d). Notice of liquidation shall be
prepared by or on behalf of the Administrative Trustees and given by the
Property Trustee by first-class
55
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the Liquidation Date to each Holder of Trust Securities at such Holder's address
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 Trust 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(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(b) or 9.4(d) 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(b) or 9.4(d) applies, from and after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding and (ii) any Trust Securities Certificates will be deemed to
represent an aggregate principal amount of Debentures equal to the aggregate
Liquidation Amount of Trust 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 to the Liquidation Date.
(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 and
terminated, by the Property Trustee after paying or making reasonable provision
to pay all claims and obligations of the Trust in accordance with Section
3808(e) of the Business Trust Act in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, Securityholders will
be entitled to receive out of the assets of the Trust available for distribution
to Securityholders, after paying or making reasonable provision to pay all
claims and obligations of the Trust in accordance with Section 3808(e) of the
Business Trust Act, an amount equal to the Liquidation Amount per Trust Security
plus accrued and unpaid Distributions thereon to the Liquidation Date (such
amount being the "LIQUIDATION DISTRIBUTION"). If, upon any such dissolution, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets legally available to pay in full the aggregate
56
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 Holders of the Common Securities
will be entitled to receive Liquidation Distributions upon any such dissolution
pro rata (determined as aforesaid) with Holders of Preferred Securities, except
that, if an Event of Default has occurred and is continuing, the Preferred
Securities shall have priority over the Common Securities.
(e) As soon as is practicable after the occurrence of an Early Dissolution
Event or the Expiration Date and upon completion of the winding up of the Trust,
the Trustees (each of whom is authorized to take such action) shall terminate
the Trust by filing a certificate of cancellation with the Secretary of State of
the State of Delaware.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust. The Trust may not merge with or into, consolidate, amalgamate, be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any corporation or other Person, except as described below.
The Trust may, 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 Trust Securities, merge with or into,
consolidate, amalgamate, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any state; provided, however, that (i) such successor entity
either (a) expressly assumes all of the obligations of the Trust with respect to
the Trust Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"SUCCESSOR SECURITIES"), so long as the Successor Securities rank the same as
the Preferred Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the Depositor
expressly appoints a trustee of such successor entity possessing the same powers
and duties as the Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any, (iv)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect (other than with respect to any
dilution of the holders' interest in the new entity), (vi) such successor entity
has a purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the Trust (which may be counsel
to the Depositor) having a national tax and securities law practice (which
opinion shall not have been rescinded) to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the holders' interest in the
new entity) and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an "investment
57
company" under the 1940 Act, 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, 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, merge with or into, or replace it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would for United States federal income tax purposes cause (i) the
holders of the Preferred Securities to recognize gain or loss or (ii) the Trust
or the successor entity to be classified as an association taxable as a
corporation.
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, 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) Notwithstanding anything in this Declaration
to the contrary, without the consent of the Depositor, this Declaration may not
be amended in a manner which imposes any additional obligation on the Depositor.
(b) In the event that any amendment to this Declaration is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(c) None of the Bank, the Property Trustee or the Delaware Trustee shall be
required to enter into any amendment to this Declaration, including to this
Section 10.2(c), which affects its own rights, power, duties, obligations or
immunities under this Declaration, without its prior written consent, and any
such amendment or purported amendment, including to this Section 10.2(c), shall
be void and ineffective without such prior written consent, which consent may be
withheld in its sole discretion. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officer's Certificate stating that any
amendment to this Declaration is in compliance with this Declaration.
Section 10.3. Separability. In case any provision in this Declaration or in
the Trust Securities Certificates shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
58
Section 10.4. GOVERNING LAW. THIS DECLARATION AND THE RIGHTS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT, TO THE
FULLEST EXTENT PERMITTED BY LAW, THERE SHALL NOT BE APPLICABLE TO THE PARTIES
HEREUNDER OR THIS DECLARATION ANY PROVISION OF THE LAWS (COMMON OR STATUTORY) OF
THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A
MANNER INCONSISTENT WITH THE TERMS HEREOF, (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND
CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER
GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL
OR PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS,
AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES
TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE
NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO
THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G)
THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE
LIMITATIONS OR AUTHORITY AND POWERS OF THE TRUSTEES HEREUNDER AS SET FORTH OR
REFERENCED IN THIS DECLARATION. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE TRUST.
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 herein),
with the same force and effect as though made on the date fixed for such
payment, and no interest shall accrue thereon for the period after such date.
Section 10.6. Successors. This Declaration shall be binding upon and shall
inure to the benefit of any successor to the Depositor, the Trust or the
relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article 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
59
Section 10.8. Reports, Notices and Demands. Any report, notice, demand or
other communications which by any provision of this Declaration is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (a) in the case of a Holder of Preferred Securities, and
(b) in the case of the Holder of the Common Securities, to such Holder as such
Holder's name and address may appear on the Securities Register. 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 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 ____________________
(b) with respect to the Delaware Trustee, to ____________________, 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.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act. (a)
This Declaration is subject to the provisions of the Trust Indenture Act that
are required to be part of this Declaration and shall, to the extent applicable,
be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is 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 by any of
the provisions of the Trust
60
Indenture Act, such required provision shall control. If any provision of this
Declaration modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply to
this Declaration as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Trust Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 10.11. ACCEPTANCE OF TERMS OF DECLARATION, GUARANTEE AND INDENTURE.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A 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 AND THEIR AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE
BINDING, OPERATIVE AND EFFECTIVE ON THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
Section 10.12. Counterparts. This Declaration may contain more than one
counterpart of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees and the Depositor 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.
61
IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be
duly executed as of the day and year first above written.
SUPERIOR TELECOM INC.,
as Depositor
By:
-----------------------------
Name:
Title:
[Property Trustee],
not in its individual capacity but solely as
Property Trustee
By:
-----------------------------
Name:
Title:
[Delaware Trustee],
not in its individual capacity but solely as
Delaware Trustee
By:
-----------------------------
Name:
Title:
--------------------------------
not in his individual capacity but solely as
Administrative Trustee
--------------------------------
not in his individual capacity but solely as
Administrative Trustee
--------------------------------
not in his individual capacity but solely as
Administrative Trustee
62
EXHIBIT A
CERTIFICATE OF TRUST
OF
SUPERIOR TRUST I
A-1
EXHIBIT B
THIS COMMON SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED, EXCEPT PURSUANT TO
SECTION 8.1 OF THE INDENTURE, DATED AS OF __________, 1999,
BETWEEN SUPERIOR TELECOM INC. AND ____________,
AS INDENTURE TRUSTEE.
Certificate Number Number of Common Securities
[ ] [ ]
Certificate Evidencing Common Securities
of
Superior Trust I
8 1/2% Trust Convertible Common Securities
(Liquidation Amount $50 per Common Security)
Superior Trust I, a statutory business trust formed under the laws of the
State of Delaware (the "Trust"), hereby certifies that Superior TeleCom Inc.
(the "Holder") is the registered owner of [ ] 8 1/2% Trust Convertible 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 (as defined below), the Common Securities are not
transferable (except in connection with mergers, acquisitions, consolidations or
other transactions provided for in Section 8.1 of the Indenture (as defined in
the Amended and Restated Declaration of Trust dated as of __________, 1999, as
the same may be amended from time to time (the "Declaration")) and the pledge of
the Common Securities by the Depositor to secure indebtedness) 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 Declaration, including the designation of the terms of
the Common Securities as set forth therein. The Trust will furnish a copy of the
Declaration to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
As set forth in the Declaration, where an Event of Default has occurred and
is continuing, the rights of Holders of Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption or otherwise are
subordinated to the rights of payment of Holders of the Preferred Securities.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
B-1
By acceptance of this Certificate, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and the
Common Securities as evidence of undivided beneficial ownership in the
Debentures.
B-2
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this _____ day of __________, 1999.
SUPERIOR TRUST I
By:
--------------------
Name:
As Administrative Trustee
B-3
EXHIBIT C
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Superior Trust I
8 1/2% Trust Convertible Preferred Securities
(Liquidation Amount $50 per Preferred Security)
Superior Trust I, 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 Superior Trust I 8
1/2% Trust Convertible Preferred Securities (Liquidation Amount $50 per
Preferred Security) (the "Preferred Securities"). The Preferred Securities
are transferable on the books and records of the Trust, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of the Declaration
(as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are
set forth in, and this certificate and the Preferred Securities represented
hereby are issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Declaration of Trust, dated as of
__________, 1999, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of Preferred
Securities as set forth therein. The Holder is entitled to the benefits of
the Guarantee Agreement entered into by Superior TeleCom Inc., a Delaware
corporation, and __________, as Guarantee Trustee, dated as of __________,
1999 (the "Guarantee"), to the extent provided therein. The Trust will
furnish a copy of the Declaration and the Guarantee to the Holder without
charge upon written request to the Trust at its principal place of business
or registered office.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
C-1
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate.
SUPERIOR TRUST I
By:
---------------------------
Name:
As Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-mentioned
Declaration.
Dated:
[ ],
as Property Trustee
By:
---------------------------
Authorized Signatory
C-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
----------------------
Signature:
--------------------------
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
C-3
EXHIBIT D
IRREVOCABLE NOTICE OF CONVERSION
(pursuant to Section 4.3)
To: [ ]
as Property Trustee of
Superior Trust I
and Conversion Agent
The undersigned owner of these Preferred Securities hereby irrevocably
exercises the option to convert these Preferred Securities, or the portion below
designated, into Common Stock, par value $0.01 per share, of SUPERIOR TELECOM
INC. (the "Superior Common Stock") in accordance with the terms of the Amended
and Restated Declaration of Trust of Superior Trust I, dated as of __________,
1999 (the "Declaration"), among Superior TeleCom Inc., as Depositor, the
Trustees of the Trust named therein and the Holders, from time to time, of
undivided beneficial interests in the Trust to be issued pursuant to the
Declaration. Pursuant to the aforementioned exercise of the option to convert
these Preferred Securities, the undersigned hereby directs the Conversion Agent
to (i) exchange such Preferred Securities for a portion of the Debentures held
by the Trust (at the conversion rate specified in the terms of the Preferred
Securities set forth in the Declaration) and (ii) immediately convert such
Debentures on behalf of the undersigned into Superior Common Stock (at the
conversion rate specified in the terms of the Preferred Securities set forth in
the Declaration). Unless otherwise defined herein, capitalized terms used in
this Notice shall have the respective meanings assigned to such terms in the
Declaration.
The undersigned does also hereby direct the Conversion Agent that the
shares of Superior Common Stock 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 of Superior Common Stock 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.
D-1
Date:
-----------------------
in whole in part
-------- -------
Number of Preferred 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 Superior Common Stock are to
be issued, along with the address or
addresses of such person or persons
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Signature (for conversion only)
Please Print or Type 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) such other guarantee programs acceptable to the Trustee.)
D-2
TABLE OF CONTENTS
ARTICLE 1
DEFINED TERMS................................................................................2
Section 1.1. Definitions...................................................................2
ARTICLE 2
ESTABLISHMENT OF THE TRUST...................................................................13
Section 2.1. Name..........................................................................13
Section 2.2. Office of the Delaware Trustee; Principal Place of Business...................13
Section 2.3. Organizational Expenses.......................................................13
Section 2.4. Subscription and Purchase of Debentures; Issuance of Trust Securities
.....................................................................................14
Section 2.5. Declaration of Trust; Intent Clause...........................................14
Section 2.6. Authorization to Enter into Certain Transactions..............................14
Section 2.7. Assets of Trust...............................................................18
Section 2.8. Title to Trust Property.......................................................18
ARTICLE 3
PROPERTY ACCOUNT.............................................................................19
Section 3.1. Property Account..............................................................19
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION..............................................19
Section 4.1. Distributions.................................................................19
Section 4.2. Redemption....................................................................20
Section 4.3. Conversion....................................................................23
Section 4.4. Special Event Exchange........................................................25
Section 4.5. No Sinking Fund; Redemption upon Change of Control............................26
Section 4.6. Subordination of Common Securities............................................28
Section 4.7. Payment Procedures............................................................28
Section 4.8. Tax Returns and Reports.......................................................28
Section 4.9. Payment of Taxes, Duties, Etc. of the Trust...................................28
Section 4.10. Payments under Indenture......................................................28
ARTICLE 5
TRUST SECURITIES CERTIFICATES................................................................29
Section 5.1. Initial Ownership.............................................................29
Section 5.2. The Trust Securities Certificates.............................................29
Section 5.3. Delivery of Trust Securities Certificates.....................................29
Section 5.4. Registration of Transfer and Exchange of Preferred Securities;
Restrictions on Transfer.............................................................30
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............30
Section 5.6. Persons Deemed Securityholders................................................31
Section 5.7. Access to List of Securityholders' Names and Addresses........................31
Section 5.8. Maintenance of Office or Agency...............................................32
Section 5.9. Appointment of Paying Agent...................................................32
Section 5.10. Ownership of Common Securities by Depositor...................................32
Section 5.11. Rights of Securityholders.....................................................33
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING;
AMENDMENT OF THE DECLARATION.................................................................33
Section 6.1. Limitations on Voting Rights..................................................33
Section 6.2. Additional Voting Rights......................................................36
Section 6.3. Notice of Meetings............................................................37
Section 6.4. Meetings of Holders of Preferred Securities...................................37
Section 6.5. Voting Rights.................................................................38
Section 6.6. Proxies, Etc..................................................................38
Section 6.7. Securityholder Action by Written Consent......................................38
Section 6.8. Record Date for Voting and Other Purposes; Discretion of Property
Trustee Relating to Meetings of Holders..............................................38
Section 6.9. Acts of Securityholders.......................................................39
Section 6.10. Inspection of Records.........................................................40
ARTICLE 7
REPRESENTATIONS AND WARRANTIES...............................................................40
Section 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.....................................................................40
Section 7.2. Representations and Warranties of Depositor...................................41
ARTICLE 8
THE TRUSTEES.................................................................................42
Section 8.1. Certain Duties and Responsibilities...........................................42
Section 8.2. Notice of Defaults............................................................43
Section 8.3. Certain Rights of Property Trustee............................................45
Section 8.4. Not Responsible for Recitals or Issuance of Securities........................48
Section 8.5. May Hold Securities...........................................................48
Section 8.6. Compensation; Indemnity; Fees.................................................48
Section 8.7. Property Trustee Required; Eligibility of Trustees............................49
Section 8.8. Disqualification: Conflicting Interest........................................50
Section 8.9. Resignation and Removal; Appointment of Successor.............................50
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Section 8.10. Acceptance of Appointment by Successor........................................52
Section 8.11. Merger, Conversion, Consolidation or Succession to Business...................52
Section 8.12. Preferential Collection of Claims Against Depositor or Trust..................53
Section 8.13. Reports by Property Trustee...................................................53
Section 8.14. Reports to the Property Trustee...............................................53
Section 8.15. Evidence of Compliance with Conditions Precedent..............................54
Section 8.16. Number of Trustees............................................................54
Section 8.17. Delegation of Power...........................................................54
ARTICLE 9
DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER.............................................55
Section 9.1. Dissolution upon Expiration Date..............................................55
Section 9.2. Early Dissolution.............................................................55
Section 9.3. Termination...................................................................55
Section 9.4. Liquidation...................................................................55
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust
.....................................................................................57
ARTICLE 10
MISCELLANEOUS PROVISIONS.....................................................................58
Section 10.1. Limitation of Rights of Securityholders.......................................58
Section 10.2. Amendment.....................................................................58
Section 10.3. Separability..................................................................58
Section 10.4. GOVERNING LAW.................................................................59
Section 10.5. Payments Due on Non-Business Day..............................................59
Section 10.6. Successors....................................................................59
Section 10.7. Headings......................................................................59
Section 10.8. Reports, Notices and Demands..................................................60
Section 10.9. Agreement Not to Petition.....................................................60
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act........................60
Section 10.11. ACCEPTANCE OF TERMS OF DECLARATION, GUARANTEE
AND INDENTURE........................................................................61
Section 10.12. Counterparts..................................................................61
EXHIBIT A........................................................................................A-1
EXHIBIT B........................................................................................B-1
EXHIBIT C........................................................................................C-1
ASSIGNMENT.......................................................................................C-3
EXHIBIT D........................................................................................D-1
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