AMENDED AND RESTATED DECLARATION
OF TRUST
CITIZENS UTILITIES TRUST
Dated as of ________, 1995
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CITIZENS UTILITIES TRUST
____________, 1995
AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration") dated and effective as of ___________, 1995, by
the undersigned trustees (together with all other Persons from
time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"),
Citizens Utilities Company, a Delaware corporation, as trust
sponsor (the "Sponsor"), and by the holders, from time to time,
of undivided beneficial interests in the Trust to be issued
pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established a
trust (the "Trust") under the Delaware Business Trust Act
pursuant to a Declaration of Trust dated as of _________, 1995,
(the "Original Declaration") and a Certificate of Trust filed
with the Secretary of State of Delaware on __________, 1995, for
the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the
Trust and contributing the proceeds thereof to Citizens Capital
to acquire certain Partnership Preferred Securities of Citizens
Capital;
WHEREAS, as of the date hereof, no interests in the
Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision
of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties
hereto to continue the Trust as a business trust under the Trust
Act and that this Declaration constitute the governing instrument
of such business trust, the Trustees declare that all assets
contributed to the Trust will be held in trust for the benefit of
the holders, from time to time, of the securities representing
undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has
the same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Exhibits are to Articles and Sections
of and Exhibits to this Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless
otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) a reference to the singular includes the plural
and vice versa.
"Affiliate" has the same meaning as given to that term
in Rule 405 of the Securities Act or any successor rule
thereunder.
"Authorized Officer" of a Person means any Person that
is authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a
Global Certificate, ownership and transfers of which shall be
maintained and made through book entries by a Clearing Agency as
described in Section 9.4.
"Business Day" has the meaning set forth in Annex II
hereto.
"Base Indenture" has the meaning set forth in Annex II
hereto.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Citizens Capital" has the meaning set forth in Annex
II hereto.
"Clearing Agency" has the meaning set forth in Annex II
hereto.
"Clearing Agency Participant" has the meaning set forth
in Annex II hereto.
"Closing Date" has the meaning set forth in Annex II
hereto.
"Code" has the meaning set forth in Annex II hereto.
"Commission" means the Securities and Exchange
Commission.
"Common Security Certificate" means a definitive
certificate in fully registered form representing a Convertible
Common Security substantially in the form of Exhibit A-2.
"Common Stock" has the meaning set forth in Annex II
hereto.
"Company" has the meaning set forth in Annex II hereto.
"Company Event" has the meaning set forth in Annex II
hereto.
"Compounded Distributions" has the meaning set forth in
Section 2 of Annex I hereto.
"Conversion Agent" has the meaning set forth in Annex
II hereto.
"Conversion Date" has the meaning set forth in Section
5 of Annex I hereto.
"Conversion Price" has the meaning set forth in Section
5 of Annex I hereto.
"Convertible Common Securities" has the meaning set
forth in Annex II hereto.
"Convertible Common Securities Guarantee Agreement"
means the guarantee agreement to be dated as of ________, 1995,
of the Sponsor in respect of the Convertible Common Securities.
"Convertible Debentures" has the meaning set forth in
Annex II hereto, with Exhibit D being a specimen certificate for
such series of Convertible Debentures.
"Convertible Preferred Securities" has the meaning set
forth in Annex II hereto.
"Convertible Preferred Securities Guarantee Agreement"
means the guarantee agreement to be dated as of ______, 1995,
between the Sponsor and Chemical Bank, as guarantee trustee, in
respect of the Convertible Preferred Securities.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of (i) the Trust or (ii) the Trust's Affiliates; and (b) any
Holder of Securities.
"Debenture Issuer" means the Sponsor in its capacity as
issuer of the Convertible Debentures.
"Declaration Event of Default" has the meaning set
forth in Annex II hereto.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the
meaning set forth in Section 9.4.
"Distribution" has the meaning set forth in Section 6.1.
"Distribution Declaration Date" has the meaning set
forth in Annex II hereto.
"Distribution Declaration Notice" has the meaning set
forth in Annex II hereto.
"Distribution Payment Date" has the meaning set forth
in Annex II hereto.
"DTC" means The Depository Trust Company, the initial
Clearing Agency.
"Election Period" has the meaning set forth in Annex II
hereto.
"Equivalent Value" has the meaning set forth in Annex
II hereto.
"Exchange Act" has the meaning set forth in Annex II
hereto.
"Fiscal Year" has the meaning set forth in Section
11.1.
"General Partner" has the meaning set forth in Annex II
hereto.
"Global Certificate" has the meaning set forth in
Section 9.4.
"Guarantee Agreements" has the meaning set forth in
Annex II hereto.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a
beneficial owner within the meaning of the Business Trust Act.
"Indemnified Person" means (a) any Trustee; (b) any
Affiliate of any Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or
agents of any Trustee; or (d) any employee or agent of the Trust
or its Affiliates.
"Indenture" has the meaning set forth in Annex II
hereto.
"Indenture Trustee" has the meaning set forth in Annex
II hereto.
"Investment Company" means an investment company as
defined in the 1940 Act.
"Legal Action" has the meaning set forth in Section
3.6(g).
"Limited Partner" means the Trust in its capacity as
holder of the Partnership Preferred Securities of Citizens
Capital.
"Limited Partnership Agreement" has the meaning set
forth in Annex II hereto.
"List of Holders" has the meaning set forth in Section 2.2.
"Ministerial Action Obligation" has the meaning set
forth in Annex II hereto.
"Majority in liquidation amount of the Securities"
means, except as provided in the terms of the Convertible
Preferred Securities and by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as
the context may require, Holders of outstanding Convertible
Preferred Securities or Holders of outstanding Convertible Common
Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"1940 Act" has the meaning set forth in Annex II
hereto.
"No Recognition Opinion" has the meaning set forth in
Annex II hereto.
"Officers' Certificate" has the meaning set forth in
Annex II hereto.
"Partnership Event" has the meaning set forth in Annex
II hereto.
"Partnership Investment Company Act Event" has the
meaning set forth in Annex II hereto.
"Partnership Preferred Securities" has the meaning set
forth in Annex II hereto.
"Partnership Tax Event" has the meaning set forth in
Annex II hereto.
"Paying Agent" has the meaning specified in Section
3.8(i).
"Person" has the meaning set forth in Annex II hereto.
"Preferred Security Beneficial Owner" means, with
respect to a Book Entry Interest, a Person who is the beneficial
owner of such Book Entry Interest, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate
representing a Convertible Preferred Security substantially in
the form of Exhibit A-1.
"Property Trustee" has the meaning set forth in Annex
II hereto.
"Property Trustee Account" has the meaning set forth in
Section 3.8(d).
"Quorum" means a majority of the Regular Trustees or,
if there are only two Regular Trustees, both of them.
"Rating Agency Event" has the meaning set forth in
Section 4(e) of Annex I hereto.
"Redemption/Distribution Notice" has the meaning set
forth in Section 4(e) of Annex I hereto.
"Regular Trustee" means any Trustee other than the
Property Trustee and the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any
direct or indirect wholly owned subsidiary of the Sponsor or any
other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the
Property Trustee, any officer of the Property Trustee with direct
responsibility for the administration of the Trust and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Securities" means the Convertible Common Securities
and the Convertible Preferred Securities.
"Securities Guarantee Agreements" means the Convertible
Common Securities Agreement and the Convertible Preferred
Securities Agreement.
"Securities Act" means the Securities Act of 1933, as
amended.
"Share Transfer and Valuation Date" has the meaning set
forth in Annex II hereto.
"66-2/3% in liquidation amount of the Securities"
means, except as provided in the terms of the Convertible
Preferred Securities and by the Trust Indenture Act, Holders of
outstanding Securities voting together as a single class or, as
the context may require, Holders of outstanding Convertible
Preferred Securities or Holders of outstanding Convertible Common
Securities voting separately as a class, representing at least
66 2/3% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions, to the date
upon which the voting percentages are determined) of all
outstanding Securities of the relevant class.
"Special Event" has the meaning set forth in Annex II
hereto.
"Special Representative" has the meaning set forth in
the Partnership Agreement.
"Sponsor" means Citizens Utilities Company, a Delaware
corporation, or any successor entity in a merger, consolidation
or amalgamation, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth
in Section 5.6(b).
"Successor Regular Trustee" has the meaning set forth
in Section 5.6(d).
"Successor Property Trustee" has the meaning set forth
in Section 5.6(b).
"Super Majority" has the meaning set forth in
Section 2.6(a)(ii).
"10% in liquidation amount of the Securities" means,
except as provided in the terms of the Convertible Preferred
Securities or by the Trust Indenture Act, Holders of outstanding
Securities voting together as a single class or, as the context
may require, Holders of outstanding Convertible Preferred
Securities or Holders of outstanding Convertible Common
Securities, voting separately as a class, representing 10% of the
aggregate liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities
of the relevant class.
"Trading Day" has the meaning set forth in Annex II
hereto.
"Treasury Regulations" has the meaning set forth in
Annex II hereto.
"Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code SECTION3801 et seq., as it may be amended
from time to time.
"Trustee" or "Trustees" means each Person who has
signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Trust Event" has the meaning set forth in Annex II
hereto.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
"Trust Investment Company Act Event" has the meaning
set forth in Annex II hereto.
"Trust Tax Event" has the meaning set forth in Annex II
hereto.
"Underwriting Agreement" means the Underwriting
Agreement for the offering and sale of Convertible Preferred
Securities in the form of Exhibit E.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of
the Trust Indenture Act that are required to be
part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a Trustee for the purposes of the Trust
Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with
the duties imposed by SECTIONSECTION 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall
control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the
Securities as equity securities representing
undivided beneficial interests in the assets of
the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on
behalf of the Trust shall provide the Property
Trustee (i) within 14 days after each record date
for payment of Distributions, a list, in such form
as the Property Trustee may reasonably require, of
the names and addresses of the Holders of the
Securities ("List of Holders") as of such record
date, provided that neither the Sponsor nor the
Regular Trustees on behalf of the Trust shall be
obligated to provide such List of Holders at any
time the List of Holders does not differ from the
most recent List of Holders given to the Property
Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust, and (ii) at any other time,
promptly following, and in any event within 10
days of, receipt by the Trust of a written request
for a List of Holders as of a date no more than 14
days before such List of Holders is given to the
Property Trustee. The Property Trustee shall
preserve, in as current a form as is reasonably
practicable, all information contained in Lists of
Holders given to it or which it receives in the
capacity as Paying Agent (if acting in such
capacity), provided that the Property Trustee may
destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its
obligations under SECTIONS 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 1 of each year, the Property
Trustee shall provide to the Holders of the Convertible Preferred
Securities such reports as are required by SECTION 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by
SECTION 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of SECTION 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide to the Property Trustee such
documents, reports and information as required by SECTION 314 of the
Trust Indenture Act (if any) and the compliance certificate
required by SECTION 314 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 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular 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) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of
Convertible Preferred Securities may, by vote, on
behalf of the Holders of all of the Convertible
Preferred Securities, waive any past Declaration
Event of Default with respect to the Convertible
Preferred Securities and its consequences,
provided that, if the underlying Partnership Event
of Default:
(i) is not waivable under the Limited Partnership
Agreement, such Declaration Event of Default
shall also not be waivable; or
(ii) requires the consent or vote of the holders
of greater than a majority in principal
amount of the Partnership Preferred
Securities (a "Super Majority") to be waived
under the Limited Partnership Agreement, the
Declaration Event of Default may only be
waived by the vote of the Holders of at least
the proportion in liquidation amount of the
Convertible Preferred Securities that the
relevant Super Majority represents of the
aggregate liquidation amount of the
Partnership Preferred Securities outstanding.
Upon such waiver, any such default shall cease to
exist, and any Declaration Event of Default with
respect to the Convertible 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 a Declaration Event of Default
with respect to the Convertible Preferred
Securities or impair any right consequent thereon.
Any waiver by the Holders of the Convertible
Preferred Securities of a Declaration Event of
Default with respect to the Convertible Preferred
Securities shall also be deemed to constitute a
waiver by the Holders of the Convertible Common
Securities of any such Declaration Event of
Default with respect to the Convertible Common
Securities for all purposes of this Declaration
without any further act, vote, or consent of the
Holders of the Convertible Common Securities.
(b) The Holders of a Majority in liquidation amount of
the Convertible Common Securities may, by vote, on
behalf of the Holders of all of the Convertible
Common Securities, waive any past Declaration
Event of Default with respect to the Convertible
Common Securities and its consequences, provided
that, if the underlying Partnership Event of
Default:
(i) is not waivable under the Limited Partnership
Agreement, except where the Holders of the
Convertible Common Securities are deemed to
have waived such Declaration Event of Default
as provided below in this Section 2.6(b),
such Declaration Event of Default 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 Convertible Common Securities
are deemed to have waived such Declaration
Event of Default as provided below in this
Section 2.6(b), the Declaration Event of
Default may only be waived by the vote of the
Holders of at least the proportion in
liquidation amount of the Convertible
Preferred Securities that the relevant Super
Majority represents of the aggregate
liquidation amount of the Partnership
Preferred Securities outstanding;
provided, further, that, at any time when a
Declaration Event of Default with respect to the
Convertible Preferred Securities has occurred and
is continuing, each Holder of Convertible Common
Securities will be deemed to have waived any such
Declaration Event of Default and all Declaration
Events of Default with respect to the Convertible
Common Securities and its consequences until all
Declaration Events of Default with respect to the
Convertible Preferred Securities have been cured,
waived or otherwise eliminated, and until such
Declaration Events of Default have been so cured,
waived or otherwise eliminated, the Property
Trustee will be deemed to be acting solely on
behalf of the Holders of the Convertible Preferred
Securities and only the Holders of the Convertible
Preferred Securities will have the right to direct
the Property Trustee in accordance with the terms
of the Securities. Subject to the foregoing
provisions of this Section 2.6(b), upon such
waiver, any such default shall cease to exist and
any Declaration Event of Default with respect to
the Convertible 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 Declaration Event of Default with
respect to the Convertible Common Securities or
impair any right consequent thereon.
(c) A waiver of a Partnership Event of Default by the
Property Trustee, acting at the direction of the
Holders of the Convertible Preferred Securities,
constitutes a waiver of the corresponding
Declaration Event of Default.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after
the occurrence of a Declaration Event of Default,
transmit by mail, first class postage prepaid, to
the Holders of the Securities, notices of all
defaults with respect to the Securities known to
the Property Trustee, unless such defaults have
been cured before the giving of such notice (the
term "defaults" for the purposes of this Section
2.7(a) being hereby defined to be a Partnership
Event of Default, not including any periods of
grace provided for in the Limited Partnership
Agreement and irrespective of the giving of any
notice provided therein); provided, that, except
for a default in the payment of liquidation amount
of (or premium, if any) or distribution on any of
the Partnership Preferred Securities or in the
payment of any sinking fund installment
established for the Partnership Preferred
Securities, the Property Trustee shall be
protected in withholding such notice if and so
long as the board of directors, the executive
committee, or a trust committee of directors
and/or Responsible Officers of the Property
Trustee in good faith determines that the
withholding of such notice is in the interests of
the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have
knowledge of any default or Declaration Event of
Default except any default or Declaration Event of
Default as to which the Property Trustee shall
have received written notice or a Responsible
Officer charged with the administration of the
Declaration shall have obtained written notice of.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Citizens Utilities Trust," or such
other name as the Regular Trustees may adopt from time to time
following written notice to the Property Trustee, the Delaware
Trustee and the Holders of Securities. The Trust's activities
may be conducted under the name of the Trust or any other name
deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
Citizens Utilities Company, High Ridge Park, P.O. Box 3801,
Stamford, Connecticut 06905. On ten (10) Business Days written
notice to the Property Trustee, the Delaware Trustee and the
Holders of Securities, the Regular Trustees may designate another
principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are
(a) to issue and sell Securities and use the proceeds from such
sale to acquire the Partnership Preferred Securities, and (b)
except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration
and to the specific duties of the Property Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out
the purposes of the Trust. An action taken by the Regular
Trustees in accordance with their powers shall constitute the act
of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute
the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no Person shall be
required to inquire into the authority of the Trustees to bind
the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Convertible Debentures and the Property Trustee Account or as
otherwise provided in this Declaration, legal title to all assets
of the Trust shall be vested in the Trust. The Holders 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.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power,
duty and authority to cause the Trust to engage in the following
activities:
(a) to issue and sell the Convertible Preferred
Securities and the Convertible Common Securities
in accordance with this Declaration; provided,
however, that the Trust may issue no more than one
series of Convertible Preferred Securities and no
more than one series of Convertible Common
Securities, and, provided further, that there
shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall
be limited to a simultaneous issuance of both
Convertible Preferred Securities and Convertible
Common Securities on each Closing Date;
(b) in connection with the issue and sale of the
Convertible Preferred Securities, at the direction
of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3
prepared by the Sponsor, including any
amendments thereto, pertaining to the
Convertible Preferred Securities;
(ii) execute and file any documents prepared by
the Sponsor, or take any acts as
determined by the Sponsor to be necessary
in order to qualify or register all or
part of the Convertible Preferred
Securities in any State in which the
Sponsor has determined to qualify or
register such Convertible Preferred
Securities for sale;
(iii) execute and file an application, prepared
by the Sponsor, to the New York Stock
Exchange or any other national stock
exchange or the Nasdaq National Market for
listing upon notice of issuance of the
Convertible Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A,
including any amendments thereto, prepared
by the Sponsor, relating to the
registration of the Convertible Preferred
Securities under Section 12(b) of the
Exchange Act; and
(v) execute and enter into the Underwriting
Agreement providing for the sale of the
Convertible Preferred Securities;
(c) to acquire the Partnership Preferred Securities
with the proceeds of the sale of the Convertible
Preferred Securities and the Convertible Common
Securities; provided, however, that the Regular
Trustees shall cause legal title to the
Partnership Preferred Securities to be held of
record in the name of the Property Trustee for the
benefit of the Holders of the Convertible
Preferred Securities and the Holders of
Convertible Common Securities;
(d) to give the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Trust
Event; provided that the Regular Trustees shall
consult with the Debenture Issuer, Citizens
Capital and the Property Trustee before taking or
refraining from taking any Ministerial Action
Obligation in relation to a Trust Event;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a
record date be established, including and with
respect to, for the purposes of SECTION316(c) of the
Trust Indenture Act, Distributions, voting rights,
redemptions and exchanges, and to issue relevant
notices to the Holders of Convertible Preferred
Securities and Holders of Convertible Common
Securities as to such actions and applicable
record dates (with copies to the Property
Trustee);
(f) to take all actions and perform such duties as may
be required of the Regular Trustees pursuant to
the terms of the Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise
adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section
3.8(f), the Property Trustee has the exclusive
power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles)
and managers, contractors, advisors, and
consultants and pay reasonable compensation for
such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by SECTION 314(a)(4) of
the Trust Indenture Act to the Property Trustee,
which certificate may be executed by any Regular
Trustee;
(k) to incur expenses that are necessary or incidental
to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
registrar and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of
the Securities (with a copy to the Property
Trustee) of any notice received from Citizens
Capital of a decision to defer distribution
payments on the Partnership Preferred Securities
under the Limited Partnership Agreement;
(n) to execute all documents or instruments, perform
all duties and powers, and do all things for and
on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) to take all action that may be necessary or
appropriate for the preservation and the
continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory
business trust under the laws of the State of
Delaware and of each other jurisdiction in which
such existence is necessary to protect the limited
liability of the Holders of the Convertible
Preferred Securities or to enable the Trust to
effect the purposes for which the Trust was
created;
(p) to take any action, not inconsistent with this
Declaration or with applicable law, that the
Regular Trustees determine in their discretion to
be necessary or desirable in carrying out the
activities of the Trust as set out in this Section
3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be
an Investment Company required to be
registered under the Investment Company
Act;
(ii) causing the Trust to be classified for
United States federal income tax purposes
as a grantor trust; and
(iii) cooperating with the Debenture Issuer to
ensure that the Convertible Debentures
will be treated as indebtedness of the
Debenture Issuer for United States federal
income tax purposes;
provided that such action does not adversely affect the
interests of the Holders; and
(q) to take all action necessary to cause all
applicable tax returns and tax information reports
that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular
Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth
in this Section 3.6 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3, and
the Regular Trustees shall not take any action that is inconsistent
with the purposes and functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall
have none of the powers or the authority of the Property Trustee
set forth in Section 3.8.
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and the Trustees (including
the Property Trustee) shall not, engage in any
activity other than as required or authorized by
this Declaration. In particular, the Trust shall
not and the Trustees (including the Property
Trustee) shall not take any action to cause the
Trust to:
(i) invest any proceeds received by the Trust
from holding the Partnership Preferred
Securities, but shall distribute all such
proceeds to Holders of Securities pursuant
to the terms of this Declaration and of
the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a
Trust purpose;
(iv) make any loans or incur any indebtedness
other than loans represented by the
Partnership Preferred Securities;
(v) possess any power or otherwise act in such
a way as to vary the Trust assets or the
terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial
interest in, the Trust other than the
Securities; or
(vii) other than as set forth in Annex I hereto,
(A) if the Property Trustee holds the
Partnership Preferred Securities, (i)
cause the Special Representative to direct
the time, method and place of conducting
any proceeding for any remedy available to
the Indenture Trustee or exercising any
trust or power conferred upon the
Indenture Trustee with respect to the
Convertible Debentures, (ii) cause the
Special Representative to waive any past
default that is waivable under Section
5.13 of the Base Indenture, (iii) cause
the Special Representative to exercise any
right to rescind or annul any declaration
that the principal amount of all the
Convertible Debentures shall be due and
payable, or (iv) cause the Special
Representative to consent to any
amendment, modification or termination of
the Limited Partnership Agreement or the
Partnership Preferred Securities where
such consent shall be required unless the
Trust shall have received an opinion of
counsel to the effect that such amendment,
modification or termination will not cause
more than an insubstantial risk that for
United States federal income tax purposes
the Trust will not be classified as a
grantor trust; or (B) if the Property
Trustee holds Convertible Debentures as a
result of the liquidation of the Citizens
Capital and the distribution of such
Convertible Debentures in exchange for the
Partnership Preferred Securities, (i)
direct the time, method and place of
conducting any proceeding for any remedy
available to the Indenture Trustee or
exercising any trust or power conferred
upon the Indenture Trustee with respect to
the Convertible Debentures, (ii) waive any
past default that is waivable under
Section 5.13 of the Base Indenture,
(iii) exercise any right to rescind or
annul any declaration that the principal
amount of all the Convertible Debentures
shall be due and payable, or (iv) consent
to any amendment, modification or
termination of the Indenture or the
Convertible Debentures where such consent
shall be required unless the Trust shall
have received an opinion of counsel to the
effect that such amendment, modification
or termination will not cause more than an
insubstantial risk that for United States
federal income tax purposes the Trust will
not be classified as a grantor trust; or
(viii) other than in connection with the
liquidation of the Trust pursuant to a
Special Event or Rating Agency Event, file
a certificate of cancellation of the
Trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Partnership Preferred
Securities shall be owned by and held of record in
the name of the Property Trustee in trust for the
benefit of the Holders of the Securities. The
right, title and interest of the Property Trustee
to the Partnership Preferred Securities shall vest
automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with
in Section 5.6. Such vesting and cessation of
title shall be effective whether or not
conveyancing documents with regard to the
Convertible Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Partnership Preferred
Securities to the Regular Trustees or to the
Delaware Trustee (if the Property Trustee does not
also act as Delaware Trustee).
(c) The Property Trustee shall not exercise any rights
of conversion with respect to any of the
Partnership Preferred Securities unless and until
it has received copies of notices of conversion
with respect to an aggregate liquidation amount of
the Securities equal to the aggregate liquidation
amount of Partnership Preferred Securities to be
converted.
(d) The Property Trustee shall:
(i) establish and maintain a segregated non-
interest bearing trust account (the
"Property Trustee Account") in the name of
and under the exclusive control of the
Property Trustee on behalf of the Holders
of the Securities and, upon the receipt of
payments of funds or securities made in
respect of the Partnership Preferred
Securities held by the Property Trustee,
deposit such funds or securities into the
Property Trustee Account and make payments
to the Holders of the Convertible
Preferred Securities and Holders of the
Convertible Common Securities from the
Property Trustee Account in accordance
with Section 6.1. Funds or securities in
the Property Trustee Account shall be held
uninvested until disbursed in accordance
with this Declaration.
(ii) engage in such ministerial activities as
shall be necessary or appropriate to
effect the redemption of the Convertible
Preferred Securities and the Convertible
Common Securities to the extent the
Convertible Debentures are redeemed or
mature; and
(iii) upon written notice of distribution issued
by the Regular Trustees in accordance with
the terms of the Securities, engage in
such ministerial activities as shall be
necessary or appropriate to effect the
distribution of the Partnership Preferred
Securities or the Convertible Debentures,
as the case may be, to Holders of
Securities, or redemption of the
Securities, as the case may be, upon the
occurrence of a Special Event or Rating
Agency Event.
(e) The Property Trustee shall take all actions and
perform such duties as may be specifically
required of the Property Trustee pursuant to the
terms of the Securities.
(f) The Property Trustee shall take any Legal Action
which arises out of or in connection with a
Declaration Event of Default or the Property
Trustee's duties and obligations under this
Declaration or the Trust Indenture Act.
(g) The Property Trustee shall not resign as a Trustee
unless either:
(i) the Trust has been completely liquidated and
the proceeds of the liquidation distributed
to the Holders of Securities pursuant to the
terms of the Securities; or
(ii) a Successor Property Trustee has been
appointed and has accepted that appointment
in accordance with Section 5.6.
(h) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges
of a holder of Partnership Preferred Securities
under the Limited Partnership Agreement and, if a
Partnership Event of Default occurs and is
continuing, the Property Trustee shall, for the
benefit of Holders of the Securities, enforce its
rights as holder of the Partnership Preferred
Securities subject to the rights of the Holders
pursuant to the terms of such Securities.
(i) The Property Trustee may authorize one or more
Persons (each, a "Paying Agent") to pay
Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to
all Securities, to act as a Conversion Agent with
respect to convertible securities on behalf of the
Trust, or to act as agent with respect to the
election by holders of the Convertible Preferred
Securities of the form of payments of
distributions; and any such Paying Agent shall
comply with SECTION 317(b) of the Trust Indenture Act.
Any Paying Agent may be removed by the Property
Trustee at any time and a successor Paying Agent
or additional Paying Agents may be appointed at
any time by the Property Trustee.
(j) Subject to this Section 3.8, the Property Trustee
shall have none of the duties, liabilities, powers
or the authority of the Regular Trustees set forth
in Section 3.6.
The Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.3,
and the Property Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust
set out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of any
Declaration Event of Default and after the curing
of all Declaration Events of Default that may have
occurred, shall undertake to perform only such
duties as are specifically set forth in this
Declaration and no implied covenants shall be read
into this Declaration against the Property
Trustee. In case a Declaration Event of Default
has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee
shall exercise such of the rights and powers
vested in it by this Declaration, and use the same
degree of care and skill in their exercise, as a
prudent person would exercise or use under the
circumstances in the conduct of his or her own
affairs.
(b) 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) prior to the occurrence of a Declaration
Event of Default and after the curing or
waiving of all such Declaration Events of
Default that may have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the
express provisions of this Declaration and
the Property Trustee shall not be liable
except for the performance of such duties
and obligations as are specifically set
forth in this Declaration, and no implied
covenants or obligations shall be read into
this Declaration against the Property
Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee
may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Property Trustee and, if required by the
terms of this Declaration, conforming to
the requirements of this Declaration; but
in the case of any such certificates or
opinions that by any provision hereof are
specifically required to be furnished to
the Property Trustee, the Property Trustee
shall be under a duty to examine the same
to determine whether or not they conform to
the requirements of this Declaration;
(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;
(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 given pursuant to
the terms of this Declaration 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;
(iv) no provision of this Declaration shall require
the Property Trustee to expend or risk its own
funds or otherwise incur personal financial
liability in the performance of any of its
duties or in the exercise of any of its rights
or powers, if it shall have reasonable grounds
for believing that the repayment of such funds
or liability is not reasonably assured to it
under the terms of this Declaration or adequate
indemnity against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect
to the custody, safe keeping and physical
preservation of the Partnership Preferred
Securities (or, if applicable, Convertible
Debentures) and the Property Trustee Account
shall be to deal with such property in a
similar manner as the Property Trustee deals
with similar property for its own account,
subject to the protections and limitations on
liability afforded to the Property Trustee
under this Declaration and the Trust Indenture
Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the
Partnership Preferred Securities or Convertible
Debentures or the payment of any taxes or
assessments levied thereon or in connection
therewith;
(vii) 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
Sponsor. Money held by the Property Trustee
need not be segregated from other funds held by
it except in relation to the Property Trustee
Account maintained by the Property Trustee
pursuant to Section 3.8(d)(i) and except to the
extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible
for monitoring the compliance by the Regular
Trustees, the Delaware Trustee or the Sponsor
with their respective duties under this
Declaration, nor shall the Property Trustee be
liable for the acts, omissions, default,
negligence or misconduct of the Regular
Trustees, the Delaware Trustee or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be
fully protected in acting or refraining from
acting upon any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, 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;
(ii) any direction or act of the Sponsor or the
Regular Trustees contemplated by this
Declaration shall be sufficiently evidenced by
an Officers' Certificate;
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem it
desirable that a matter be proved or
established before taking, suffering or
omitting any action hereunder, the Property
Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by
the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see
to any recording, filing or registration of any
instrument (including any financing or
continuation statement or any filing under tax
or securities laws) or any rerecording,
refiling or registration thereof;
(v) the Property Trustee may consult with counsel
or other experts and the advice or opinion of
such counsel and experts with respect to legal
matters or advice within the scope of such
experts' area of expertise 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
accordance with such advice or opinion, such
counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its
employees. The Property Trustee shall have the
right at any time to seek instructions
concerning the administration of this
Declaration from any court of competent
jurisdiction;
(vi) 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 Holder, unless such
Holder shall have provided to the Property
Trustee adequate security and indemnity against
the costs, expenses (including attorneys' fees
and expenses) and liabilities that might be
incurred by it in complying with such request
or direction, including such reasonable
advances as may be requested by the Property
Trustee; provided, that, nothing contained in
this Section 3.10(a)(vi) shall be taken to
relieve the Property Trustee, upon the
occurrence of a Declaration Event of Default,
of its obligation to exercise the rights and
powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make
any investigation into the facts or matters
stated in any resolution, certificate,
statement, instrument, opinion, report, notice,
request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness
or other paper or document, but the Property
Trustee, in its discretion, may make such
further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any
duties hereunder either directly or by or
through agents or attorneys and the Property
Trustee shall not be responsible for any
misconduct or negligence on the part of any
agent or attorney appointed with due care by it
hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the
Holders of the Securities, and the signature of
the Property Trustee or its agents alone shall
be sufficient and effective to perform any such
action and no third party shall be required to
inquire as to the authority of the Property
Trustee to so act or as to its compliance with
any of the terms and provisions of this
Declaration, both of which shall be
conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this
Declaration the Property Trustee shall deem it
desirable to receive instructions with respect
to enforcing any remedy or right or taking any
other action hereunder, the Property Trustee
(i) may request instructions from the Holders
of the Securities, 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 acting in accordance with such
instructions; and
(xi) 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.
(b) 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 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration
other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Regular
Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be
a Trustee for the sole and limited purpose of fulfilling the
requirements of SECTION 3807 of the Business Trust Act. [In the
performance of any duties or obligations hereunder, the Delaware
Trustee shall be entitled to the same benefits and immunities as
the Property Trustee under Sections 3.9(b) and 3.10 hereof.]
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act, a
majority of or, if there are only two, any Regular Trustee or, if
there is only one, such Regular Trustee, is, authorized to
execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to
Section 3.6; provided that, the registration statement referred
to in Section 3.6(b)(i), including any amendments thereto, shall
be signed by all of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the
Securities shall be taken as the statements of the Sponsor, and
the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the
value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity
or sufficiency of this Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions
of Article VIII hereof, shall have existence for 45 years from
the initial Closing Date.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge
with or into, or be replaced by, or convey,
transfer or lease its properties and assets
substantially as an entirety to any corporation or
other body, except as described in Section 3.15(b)
and (c).
(b) The Trust may, with the consent of a majority of
the Regular Trustees (or if there are only one or
two Regular Trustees, with the consent of each
such Regular Trustee) and without the consent of
the Holders of the Securities, the Delaware
Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by
a trust organized as such under the laws of any
State; provided that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same
terms as the Convertible Preferred
Securities (the "Successor Securities") so
long as the Successor Securities rank the
same as the Convertible Preferred
Securities rank with respect to
Distributions and payments upon
liquidation, redemption and otherwise;
(ii) Citizens Capital expressly acknowledges a
trustee of the Successor Entity that possesses
the same powers and duties as the Property
Trustee as the holder of the Partnership
Preferred Securities and that satisfies the
same criteria as required of the Property
Trustee by Section 5.3 of this Declaration;
(iii) the Convertible Preferred Securities or any
Successor Securities are listed, or any
Successor Securities will be listed upon
notification of issuance, on any national
securities exchange or with an other
organization on which the Convertible Preferred
Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Convertible
Preferred Securities (including any Successor
Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the
rights, preferences and privileges of the
Holders of the Securities (including any
Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose identical
to that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation or replacement, the Sponsor and
the Property Trustee have received an opinion
of a nationally recognized independent counsel
to the Trust experienced in such matters to the
effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the
rights, preferences and privileges of the
Holders of the Securities (including any
Successor Securities) in any material
respect;
(B) following such merger, consolidation,
amalgamation or replacement, neither the
Trust nor the Successor Entity will be
required to register as an Investment
Company;
(C) all conditions precedent in this
Declaration to such merger, consolidation,
amalgamation or replacement have been
satisfied; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities
at least to the extent provided by the
Convertible Preferred Securities Guarantee
Agreement.
(c) Notwithstanding Section 3.15(b), the Trust shall
not, except with the consent of Holders of 100% in
liquidation amount of the Securities, consolidate,
amalgamate, merge with or into, or be replaced by
any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation,
merger or replacement would cause the Trust or
Successor Entity to be classified as other than a
grantor trust for United States federal income tax
purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Convertible Common Securities.
On each Closing Date the Sponsor shall purchase for
cash all the Convertible Common Securities issued by the Trust,
in an amount equal to at least 3% of the total capital of the
Trust, at the same time as the Convertible Preferred Securities
are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the
Convertible Preferred Securities, the Sponsor shall have the
exclusive right and responsibility to engage in the following
activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in
relation to the Convertible Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take
appropriate action to qualify or register for sale
all or part of the Convertible Preferred
Securities and to do any and all such acts, other
than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and
prepare for execution and filing any documents to
be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply
with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application
to the New York Stock Exchange or any other
national stock exchange or the Nasdaq National
Market for listing upon notice of issuance of any
Convertible Preferred Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A
relating to the registration of the Convertible
Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
and
(e) to negotiate the terms of the Underwriting
Agreement providing for the sale of the
Convertible Preferred Securities.
SECTION 4.3 Covenants of Sponsor.
Other than in connection with the liquidation of the
Trust pursuant to a Special Event or Rating Agency Event, the
Sponsor shall not cause the filing of a certificate of
cancellation of the Trust.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees shall initially be four (4),
and:
(a) at any time before the issuance of any Securities,
the Sponsor may, by written instrument, increase
or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number
of Trustees may be increased or decreased by vote
of the Holders of a Majority in liquidation amount
of the Convertible Common Securities voting as a
class at a meeting of the Holders of the
Convertible Common Securities.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of
Delaware, and otherwise meets the requirements of
applicable law,
provided that, if the Property Trustee has its principal
place of business in the State of Delaware and otherwise
meets the requirements of applicable law, then the Property
Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which
shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America
or any State or Territory thereof or of the
District of Columbia, or a corporation or
Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise
corporate trust powers, having a combined
capital and surplus of at least 50 million U.S.
dollars ($50,000,000), and subject to
supervision or examination by Federal, State,
Territorial or District of Columbia authority.
If such corporation publishes reports of
condition at least annually, pursuant to law or
to the requirements of the supervising or
examining authority referred to above, then for
the purposes of this Section 5.3(a)(ii), the
combined capital and surplus of such
corporation shall be deemed to be its combined
capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Property Trustee shall cease to
be eligible to so act under Section 5.3(a), the
Property Trustee shall immediately resign in the
manner and with the effect set forth in Section
5.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of SECTION
310(b) of the Trust Indenture Act, the Property
Trustee and the Holder of the Convertible Common
Securities (as if it were the obligor referred to
in SECTION 310(b) of the Trust Indenture Act) shall in
all respects comply with the provisions of SECTION
310(b) of the Trust Indenture Act.
(d) The Convertible Preferred Securities Guarantee
Agreement shall be deemed to be specifically
described in this Declaration for purposes of
clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
SECTION 5.4 Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware 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 Authorized
Officers.
SECTION 5.5 Initial Trustees.
The initial Regular Trustees shall be:
Robert J. DeSantis
Edward O. Kipperman
The initial Delaware Trustee shall be:
Chemical Bank Delaware, a Delaware banking corporation.
The initial Property Trustee shall be:
Chemical Bank, a New York banking corporation.
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of any Securities, by
written instrument executed by the Sponsor; and
(ii) after the issuance of any Securities by vote of
the Holders of a Majority in liquidation amount
of the Convertible Common Securities voting as
a class at a meeting of the Holders of the
Convertible Common Securities.
(b)(i) The Trustee that acts as Property Trustee shall
not be removed in accordance with Section
5.6(a) until a successor Property Trustee (the
"Successor Property Trustee") has been
appointed and has accepted such appointment by
written instrument executed by such Successor
Property Trustee and delivered to the Regular
Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall
not be removed in accordance with Section
5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware
Trustee") has been appointed and has accepted
such appointment by written instrument executed
by such Successor Delaware Trustee and
delivered to the Regular Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office
until his successor shall have been appointed or
until his death, removal or resignation. 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 Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later
date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as
the Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment
by instrument executed by such Successor
Property Trustee and delivered to the
Trust, the Sponsor and the resigning
Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds
thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as
the Delaware Trustee shall be effective until a
Successor Delaware Trustee has been appointed
and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Convertible Common Securities
shall use their best efforts to promptly appoint a
successor Regular Trustee ("a Successor Regular
Trustee"), Successor Delaware Trustee or Successor
Property Trustee, as the case may be, if a Regular
Trustee, the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in
accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and
accepted appointment as provided in this Section
5.6 within 60 days after delivery to the Sponsor
and the Trust of an instrument of resignation, the
resigning Property Trustee or Delaware Trustee, 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 and
prescribe, appoint a Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and
the number of Trustees is not reduced pursuant to Section 5.1, or
if the number of Trustees is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of
such vacancy by a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance
with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal,
bankruptcy, dissolution, liquidation, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Regular Trustees
shall occur, until such vacancy is filled by the appointment of a
Successor Regular Trustee in accordance with Section 5.6, the
Regular Trustees in office, regardless of their number, shall
have all the powers granted to the Regular Trustees and shall
discharge all the duties imposed upon the Regular Trustees by
this Declaration.
SECTION 5.9 Merger of a Trustee.
Any corporation into which a Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which a Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
trust business of a Trustee, shall be the successor of such
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Declaration, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by a Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Securities.
SECTION 5.10 Meetings.
Meetings of the Regular Trustees shall be held from
time to time upon the call of any Regular Trustee. Regular
meetings of the Regular Trustees may be held at a time and place
fixed by resolution of the Regular Trustees. Notice of any in-
person meetings of the Regular Trustees shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 48 hours before
such meeting. Notice of any telephonic meetings of the Regular
Trustees or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a
meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence
(whether in person or by telephone) of a Regular Trustee at a
meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express
purpose of objecting to the transaction of any activity on the
ground that the meeting has not been lawfully called or convened.
Unless provided otherwise in this Declaration, any action of the
Regular Trustees may be taken at a meeting by vote of a majority
of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Regular Trustees.
SECTION 5.11 Delegation of Power.
(a) Any Regular 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 3.6, including any
registration statement or amendment thereto filed
with the Commission, or making any other
governmental filing; and
(b) the Regular Trustees shall have power to delegate
from time to time to such of their number or to
officers of the Trust the doing of such things and
the execution of such instruments either in the
name of the Trust or the names of the Regular
Trustees or otherwise as the Regular Trustees may
deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with
the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Convertible Preferred
Securities and the Convertible Common Securities in accordance
with the preferences set forth in their respective terms. If and
to the extent that Citizens Capital makes a distribution payment
(including payment of Compounded Distributions (as defined in the
Limited Partnership Agreement)) of premium and principal on the
Partnership Preferred Securities held by the Property Trustee
(the amount of any such payment being a "Payment Amount"), the
Property Trustee shall and is directed, to the extent funds
and/or Common Stock are available, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust
issue one class of Convertible Preferred
Securities having such terms as are set forth in
Annex I hereto and one class of Convertible Common
Securities having such terms as are set forth in
Annex I hereto. The Trust shall have no
securities or other interests in the assets of the
Trust other than the Convertible Preferred
Securities and the Convertible Common Securities.
(b) The Certificates shall be signed on behalf of the
Trust by a Regular Trustee. Such signature shall
be the manual signature of any present or any
future Regular Trustee. In case any Regular
Trustee of the Trust who shall have signed any of
the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be
delivered by the Trust, such Certificates
nevertheless may be delivered as though the person
who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be
signed on behalf of the Trust by such persons who,
at the actual date of execution of such Security,
shall be the Regular Trustees of the Trust,
although at the date of the execution and delivery
of the Declaration any such person was not such a
Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any
other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or
other marks of identification or designation and
such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be
required to comply with any law or with any rule
or regulation of any stock exchange on which
Securities may be listed, or to conform to usage.
(c) The consideration received by the Trust for the
issuance of the Securities shall constitute a
contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in
this Declaration, the Securities so issued shall
be deemed to be validly issued, fully paid and
non-assessable.
(e) Every Person, by virtue of having become a Holder
or a Preferred Security Beneficial Owner in
accordance with the terms of this Declaration,
shall be deemed to have expressly assented and
agreed to the terms of, and shall be bound by,
this Declaration.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Holder of the
Convertible Common Securities or the Sponsor;
(ii) upon the filing of a certificate of dissolution
or its equivalent with respect to the Holder of
the Convertible Common Securities or the
Sponsor; the filing of a certificate of
cancellation with respect to the Trust or the
revocation of the Holder of the Convertible
Common Securities or the Sponsor's charter and
the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial
dissolution of the Holder of the Convertible
Common Securities, the Sponsor or the Trust;
(iv) when all of the Securities shall have been
called for redemption and the amounts necessary
for redemption thereof shall have been paid to
the Holders in accordance with the terms of the
Securities;
(v) upon the occurrence and continuation of a Trust
Event, Partnership Event, Company Event or
Rating Agency Event pursuant to which (i) the
Trust shall have been dissolved in accordance
with the terms of the Securities and either all
of the Partnership Preferred Securities or such
amount of Convertible Debentures as set forth
in Annex I, as the case may be, shall have been
distributed to the Holders of Securities in
exchange for all of the Securities or (ii) the
Securities shall have been redeemed; or
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the
Sponsor.
(b) As soon as is practicable after the occurrence of
an event referred to in Section 8.1(a), the
Trustees shall file a certificate of cancellation
with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 3.9 and Article X shall
survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions
set forth in this Declaration and in the terms of
the Securities. Any transfer or purported
transfer of any Security not made in accordance
with this Declaration shall be null and void.
(b) Subject to this Article IX, Convertible Preferred
Securities shall be freely transferable.
(c) Subject to this Article IX, the Sponsor and any
Related Party may only transfer Convertible Common
Securities to the Sponsor or a Related Party of
the Sponsor; provided that, any such transfer is
subject to the condition precedent that the
transferor obtain the written opinion of
nationally recognized independent counsel
experienced in such matters that such transfer
would not cause more than an insubstantial risk
that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor
trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration
of Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may require) in respect of any
tax or other government charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new
Certificates to be issued in the name of the designated
transferee or transferees. Every Certificate surrendered for
registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Regular
Trustees duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for
registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon
the receipt by such transferee of a Certificate. By acceptance
of a Certificate, each transferee shall be deemed to have agreed
to be bound by this Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the
Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of
receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other
notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the
Convertible Preferred Securities, the Preferred Securities
Certificates, on original issuance, will be issued in the form of
one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to
DTC, the initial Clearing Agency, by, or on behalf of, the Trust.
Such Global Certificates shall initially be registered on the
books and records of the Trust in the name of Cede & Co., the
nominee of DTC, and no Preferred Security Beneficial Owner will
receive a definitive Preferred Security Certificate representing
such Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 9.7. Unless
and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates")
have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in
full force and effect;
(b) the Trust and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of
this Declaration (including the payment of
Distributions on the Global Certificates and
receiving approvals, votes or consents hereunder)
as the Holder of the Convertible Preferred
Securities and the sole holder of the Global
Certificates and shall have no obligation to the
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section
9.4 conflict with any other provisions of this
Declaration, the provisions of this Section 9.4
shall control; and
(d) the rights of the Preferred Security Beneficial
Owners shall be exercised only through the
Clearing Agency and shall be limited to those
established by law and agreements between such
Preferred Security Beneficial Owners and the
Clearing Agency and/or the Clearing Agency
Participants and receive and transmit payments of
Distributions on the Global Certificates to such
Clearing Agency Participants. DTC will make book
entry transfers among the Clearing Agency
Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the
Convertible Preferred Security Holders is required under this
Declaration, unless and until Definitive Preferred Security
Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Trustees shall
give all such notices and communications specified herein to be
given to the Convertible Preferred Security Holders to the
Clearing Agency, and shall have no notice obligations to the
Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its
services as securities depositary with respect to the Convertible
Preferred Securities, the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to
such Convertible Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its
services as securities depositary with respect to
the Convertible Preferred Securities and a
successor Clearing Agency is not appointed within
90 days after such discontinuance pursuant to
Section 9.6;
(b) the Regular Trustees elect after consultation with
the Sponsor to terminate the book entry system
through the Clearing Agency with respect to the
Convertible Preferred Securities; or
(c) upon a Declaration Event of Default
then:
(d) Definitive Preferred Security Certificates shall
be prepared by the Regular Trustees on behalf of
the Trust with respect to such Convertible
Preferred Securities; and
(e) upon surrender of the Global Certificates by the
Clearing Agency, accompanied by registration
instructions, the Regular Trustees shall cause
Definitive Preferred Security Certificates to be
delivered to Preferred Security Beneficial Owners
in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the
Trust shall be liable for any delay in delivery of
such instructions and each of them may
conclusively rely on and shall be protected in
relying on, said instructions of the Clearing
Agency. The Definitive Preferred Security
Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as
is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may
have such letters, numbers or other marks of
identification or designation and such legends or
endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with
any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of
any stock exchange on which Convertible Preferred
Securities may be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered
to the Regular Trustees, or if the Regular
Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of
any Certificate; and
(b) there shall be delivered to the Regular Trustees
such security or indemnity as may be required by
them to keep each of the Trustees harmless,
then:
In the absence of notice that such Certificate shall
have been acquired by a bona fide purchaser, any Regular Trustee
on behalf of the Trust shall execute and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In
connection with the issuance of any new Certificate under this
Section 9.8, the Regular Trustees may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration,
the Securities Guarantee Agreements, the Indenture
and the terms of the Securities, neither the
Sponsor nor the Trustees shall be:
(i) personally liable for the return of any portion
of the capital contributions (or any return
thereon) of the Holders of the Securities which
shall be made solely from the assets of the
Trust; and
(ii) be required to pay to the Trust or to any
Holder of Securities any deficit upon
dissolution of the Trust or otherwise.
(b) The Holder of the Convertible Common Securities
shall be liable for all of the debts and
obligations of the Trust (other than with respect
to the Securities) to the extent not satisfied out
of the Trust's assets.
(c) Pursuant to SECTION 3803(a) of the Business Trust Act,
the Holders of the Convertible Preferred
Securities 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.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the
Trust or any Covered Person for any loss, damage
or claim incurred by reason of 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 the authority conferred on
such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's gross
negligence (or, in the case of the Property
Trustee, negligence) or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the
Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person
as to matters the Indemnified Person reasonably
believes are within such other Person's
professional or expert competence and who has been
selected with reasonable care by or on behalf of
the Trust, including information, opinions,
reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or
any other facts pertinent to the existence and
amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary
duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration
shall not be liable to the Trust or to any other
Covered Person for its 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 an Indemnified
Person otherwise existing at law or in equity
(other than the duties imposed on the Property
Trustee under the Trust Indenture Act), are agreed
by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between an Indemnified Person and any
Covered Person; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein
provides that an Indemnified Person shall act
in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any
Holder of Securities,
the Indemnified Person shall resolve such conflict
of interest, take such action or provide such
terms, considering in each case the relative
interest of each party (including its own
interest) to such conflict, agreement, transaction
or situation and the benefits and burdens relating
to such interests, any customary or accepted
industry practices, and any applicable generally
accepted accounting practices or principles. In
the absence of bad faith by the Indemnified
Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall
not constitute a breach of this Declaration or any
other agreement contemplated herein or of any duty
or obligation of the Indemnified Person at law or
in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person
is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be
entitled to consider such interests and factors
as it desires, including its own interests, and
shall have no duty or obligation to give any
consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act
under such express standard and shall not be
subject to any other or different standard
imposed by this Declaration or by applicable
law.
SECTION 10.4 Indemnification.
(a) To the fullest extent permitted by applicable law,
the Sponsor shall indemnify and hold harmless each
Indemnified Person from and against any loss,
damage, liability, tax, penalty, expense
(including legal fees and expenses) or claim of
any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation,
operation or termination of the Trust or any act
or omission performed or omitted by such
Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of
authority conferred on such Indemnified Person by
this Declaration, except that no Indemnified
Person shall be entitled to be indemnified in
respect of any loss, damage or claim incurred by
such Indemnified Person by reason of gross
negligence (or, in the case of the Property
Trustee, negligence) or willful misconduct with
respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an
Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to
time, be advanced by the Sponsor prior to the
final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Sponsor 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
Section 10.4(a). The indemnification shall
survive the termination of this Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee
and the Property Trustee may engage in or possess an interest in
other business ventures of any nature or description,
independently or with others, similar or dissimilar to the
business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived
therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed
wrongful or improper. No Covered Person, nor the Sponsor,
Delaware Trustee, or Property Trustee shall be obligated to
present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may
engage or be interested in any financial or other transaction
with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the
Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be
the calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust,
the Regular Trustees shall keep, or cause to be
kept, full books of account, records and
supporting documents, which shall reflect in
reasonable detail each transaction of the Trust.
The books of account shall be maintained on the
accrual method of accounting, in accordance with
generally accepted accounting principles,
consistently applied. The Trust shall use the
accrual method of accounting for United States
federal income tax purposes. The books of account
and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal
Year by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared
and delivered to each of the Holders of
Securities, within 90 days after the end of each
Fiscal Year of the Trust, annual financial
statements of the Trust, including a balance sheet
of the Trust as of the end of such Fiscal Year,
and the related statements of income or loss;
(c) The Regular Trustees shall cause to be duly
prepared and delivered to each of the Holders of
Securities, any annual United States federal
income tax information statement, required by the
Code, containing such information with regard to
the Securities held by each Holder as is required
by the Code and the Treasury Regulations.
Notwithstanding any right under the Code to
deliver any such statement at a later date, the
Regular Trustees shall endeavor to deliver all
such statements within 30 days after the end of
each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly
prepared and filed with the appropriate taxing
authority, an annual United States federal income
tax return, on a Form 1041 or such other form
required by United States federal income tax law,
and any other annual income tax returns required
to be filed by the Regular Trustees on behalf of
the Trust with any state or local taxing
authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in
the name and for the sole benefit of the Trust; provided,
however, that all payments of funds or securities in respect of
the Partnership Preferred Securities held by the Property Trustee
shall be made directly to the Property Trustee Account and no
other funds or securities of the Trust shall be deposited in the
Property Trustee Account. The sole signatories for such accounts
shall be designated by the Regular Trustees; provided, however,
that the Property Trustee shall designate the signatories for the
Property Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with
all withholding requirements under United States federal, state
and local law. The Trust shall request, and the Holders shall
provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of,
and in fulfilling, its withholding obligations. The Regular
Trustee shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the Trust
is required to withhold and pay over any amounts to any authority
with respect to Distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to
be withheld was not withheld from actual Distributions made, the
Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration
or by any applicable terms of the Securities, this
Declaration may only be amended by a written
instrument approved and executed by:
(i) the Regular Trustees (or, if there are more
than two Regular Trustees a majority of the
Regular Trustees);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the
Property Trustee, the Property Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the
Delaware Trustee, the Delaware Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment,
the Property Trustee shall have first received
an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is
permitted by, and conforms to, the terms of
this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties,
obligations or immunities of the Property
Trustee, the Property Trustee shall have first
received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms
of this Declaration (including the terms of
the Securities); and
(B) an opinion of counsel (who may be counsel
to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to,
the terms of this Declaration (including
the terms of the Securities) and that all
conditions precedent to such proposed
amendment have been satisfied; and
(iii) to the extent the result of such amendment
would be to:
(A) cause the trust to fail to continue to be
classified for purposes of United States
federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in
contravention of the Trust Indenture Act;
or
(C) cause the Trust to be deemed to be an
Investment Company required to be
registered under the Investment Company
Act;
(c) at such time after the Trust has issued any
Securities that remain outstanding, any amendment
that would adversely affect the rights, privileges
or preferences of any Holder of Securities may be
effected only with such additional requirements as
may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders
of the Securities;
(e) Article IV shall not be amended without the
consent of the Holders of a Majority in
liquidation amount of the Convertible Common
Securities and;
(f) the rights of the holders of the Convertible
Common Securities under Article V to increase or
decrease the number of, and appoint and remove
Trustees shall not be amended without the consent
of the Holders of a Majority in liquidation amount
of the Convertible Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration
may be amended without the consent of the Holders
of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or
inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor; and
(iv) to conform to any change in the 1940 Act or
written change in interpretation or application
of the rules and regulations promulgated
thereunder by any legislative body, court,
government agency or regulatory authority in
such a manner that the Trust shall not become
an Investment Company and which amendment does
not have a material adverse effect on the
right, preferences or privileges of the
Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Regular Trustees
or following a Declaration Event of Default, by
the Property Trustee (or as provided in the terms
of the Securities) to consider and act on any
matter on which Holders of such class of
Securities are entitled to act under the terms of
this Declaration, the terms of the Securities or
the rules of any stock exchange on which the
Convertible Preferred Securities are listed or
admitted for trading. The Regular Trustees shall
call a meeting of the Holders of such class if
directed to do so by the Holders of at least 10%
in liquidation amount of such class of Securities.
Such direction shall be given by delivering to the
Regular Trustees one or more calls in a writing
stating that the signing Holders of Securities
wish to call a meeting and indicating the general
or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a
meeting shall specify in writing the Security
Certificates held by the Holders of Securities
exercising the right to call a meeting and only
those Securities specified shall be counted for
purposes of determining whether the required
percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the
terms of the Securities, the following provisions
shall apply to meetings of Holders of Securities:
(i) notice of any such meeting shall be given to
all the Holders of Securities having a right to
vote thereat at least 7 days and not more than
60 days before the date of such meeting.
Whenever a vote, consent or approval of the
Holders of Securities is permitted or required
under this Declaration or the rules of any
stock exchange on which the Convertible
Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be
given at a meeting of the Holders of
Securities. Any action that may be taken at a
meeting of the Holders of Securities may be
taken without a meeting if a consent in writing
setting forth the action so taken is signed by
the Holders of Securities owning not less than
the minimum amount of Securities in liquidation
amount that would be necessary to authorize or
take such action at a meeting at which all
Holders of Securities having a right to vote
thereon were present and voting. Prompt notice
of the taking of action without a meeting shall
be given to the Holders of Securities entitled
to vote who have not consented in writing. The
Regular Trustees may specify that any written
ballot submitted to the Security Holder for the
purpose of taking any action without a meeting
shall be returned to the Trust within the time
specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters in
which a Holder of Securities is entitled to
participate, including waiving notice of any
meeting, or voting or participating at a
meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every
proxy shall be revocable at the pleasure of the
Holder of Securities executing it. 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 of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or
by such other Person that the Regular Trustees
may designate; and
(iv) unless the Business Trust Act, this
Declaration, the terms of the Securities, the
Trust Indenture Act or the listing rules of any
stock exchange on which the Convertible
Preferred Securities are then listed or trading
otherwise provides, the Regular Trustees, in
their sole discretion, shall establish all
other provisions relating to meetings of
Holders of Securities, including notice of the
time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action
by consent without a meeting, the establishment
of a record date, quorum requirements, voting
in person or by proxy or any other matter with
respect to the exercise of any such right to
vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Property Trustee
represents and warrants to the Trust and the Sponsor at the time
of the Successor Property Trustee's acceptance of its appointment
as Property Trustee that:
(a) The Property Trustee is a New York banking
corporation with trust powers, duly organized,
validly existing and in good standing under the
laws of the State of New York, with trust power
and authority to execute and deliver, and to carry
out and perform its obligations under the terms
of, the Declaration.
(b) The execution, delivery and performance by the
Property Trustee of the Declaration has been duly
authorized by all necessary corporate action on
the part of the Property Trustee. The Declaration
has been duly executed and delivered by the
Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property
Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally
and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of the
Declaration by the Property Trustee does not
conflict with or constitute a breach of the
Articles of Organization or By-laws of the
Property Trustee.
(d) No consent, approval or authorization of, or
registration with or notice to, any State or
Federal banking authority is required for the
execution, delivery or performance by the Property
Trustee, of the Declaration.
(e) The Property Trustee, pursuant to the Declaration,
shall hold legal title and a valid ownership
interest in the Partnership Preferred Securities
under the law of its place of incorporation and
Delaware law.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor at the time
of the Successor Delaware Trustee's acceptance of its appointment
as Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking
corporation with trust powers, duly organized,
validly existing and in good standing under the
laws of the State of Delaware, with trust power
and authority to execute and deliver, and to carry
out and perform its obligations under the terms
of, the Declaration.
(b) The Delaware Trustee has been authorized to
perform its obligations under the Certificate of
Trust and the Declaration. The Declaration under
Delaware law constitutes a legal, valid and
binding obligation of the Delaware Trustee,
enforceable against it in accordance with its
terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally
and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) No consent, approval or authorization of, or
registration with or notice to, any State or
Federal banking authority is required for the
execution, delivery or performance by the Delaware
Trustee of the Declaration.
(d) The Delaware Trustee is an entity which has its
principal place of business in the State of
Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular
Trustees at the Trust's mailing address set forth
below (or such other address as the Trust may give
notice of to the Trustees and the Holders of the
Securities):
CITIZENS UTILITIES TRUST
c/o Citizens Utilities Company
High Ridge Park
P.O. Box 3801
Stamford, Connecticut 06905
Attention: _________________
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as
the Delaware Trustee may give notice of to the
other Trustees):
Chemical Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: _______________
(c) if given to the Property Trustee, at the mailing
address set forth below (or such other address as
the Property Trustee may give notice of to the
Holders of the Securities):
Chemical Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Corporate Trustee
Administration Department
(d) if given to the Holder of the Convertible Common
Securities, at the mailing address of the Sponsor
set forth below (or such other address as the
Holder of the Convertible Common Securities may
give notice to the Trust):
CITIZENS UTILITIES COMPANY
High Ridge Park
P.O. Box 3801
Stamford, Connecticut 06905
Attention: _________________
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 14.2 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
conflict of laws.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the
Trust be classified for United States federal income tax purposes
as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto
is named or referred to, the successors and assigns of such party
shall be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall bind
and inure to the benefit of their respective successors and
assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the
application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the
application of such provision to Persons or circumstances other
than those to which it is held invalid, shall not be affected
thereby.
SECTION 14.7 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 a duly
authorized officer of the Company 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.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above
written.
Robert J. DeSantis
as Regular Trustee
__________________________
Edward O. Kipperman
as Regular Trustee
__________________________
CHEMICAL BANK DELAWARE
as Delaware Trustee
By:
Name:
Title:
CHEMICAL BANK
as Property Trustee
By:
Name:
Title:
CITIZENS UTILITIES COMPANY
as Sponsor
By:
Name:
Title:
ANNEX I
TERMS OF SECURITIES
ANNEX II
STATEMENT OF COMMON DEFINITIONS
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
EXHIBIT B
FORM OF NOTICE OF DISTRIBUTION ELECTION
TO: _________________,
As General Partner,
Citizens Utility Company
The undersigned owner of ____% Convertible Partnership
Preferred Securities (liquidation preference $50 per preferred
security) (the "Partnership Preferred Securities"), issued
pursuant to the Amended and Restated Agreement of Limited
Partnership (the "Limited Partnership Agreement"), dated as of
___________ ___, 1995, by and among Citizens Utilities Company,
as the general partner, ____________, as initial limited partner,
and such other Persons (as defined therein) who become Limited
Partners (as defined therein) as provided in the Limited
Partnership Agreement, hereby irrevocably elects to receive, in
the form prescribed below, Distributions (as such term is defined
in the Limited Partnership Agreement) due and payable to the
undersigned on the four Distribution Payment Dates (as such term
is defined in the Limited Partnership Agreement) occurring after
the Election Period during which this Notice of Distribution
Election is being submitted, and on each succeeding Distribution
Payment Date until such time as another Notice of Distribution
Election is timely submitted during an Election Period, as
follows:
The Undersigned, as a Holder of Partnership Preferred
Securities, elects to receive payment of Distributions due and
payable on the next four Distribution Payment Dates on such
Partnership Preferred Securities, and on each succeeding
Distribution Payment Date until such time as another Notice of
Distribution Election is timely submitted during an Election
Period, in the form of:
Choose one:
( ) Cash
( ) An Equivalent Value of shares Common Stock Series A,
par value $.25 per share, of Citizens Utilities Company
("Common Stock")
The undersigned does also hereby direct the addressee
that any and all Distributions in the form of Common Stock made
pursuant to this Notice of Distribution Election be delivered to
and issued in the name of the undersigned, unless a different
name/different names has/have been indicated in the assignment
below. If such shares are to be issued in the name/names of a
person/persons other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto.
This Notice of Distribution Election and any action
taken hereunder shall be governed by the terms of the Limited
Partnership Agreement.
Date: ____________, ____
Signature
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other
Identifying Number
(Applicable only if box (B) has
been checked.) If a name or names
other than the undersigned, please
indicate in the spaces below the
name or names in which shares of
Common Stock are to be issued,
along with the address or addresses
of such person or persons
EXHIBIT C
FORM OF PARTNERSHIP PREFERRED SECURITIES
EXHIBIT D
FORM OF CONVERTIBLE DEBENTURE
EXHIBIT E
UNDERWRITING AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I INTERPRETATION AND DEFINITIONS . . . . . . . . 2
SECTION 1.1 Definitions . . . . . . . . . . . . . . . 2
ARTICLE II TRUST INDENTURE ACT . . . . . . . . . . . . . 9
SECTION 2.1 Trust Indenture Act; Application . . . . . 9
SECTION 2.2 Lists of Holders of Securities . . . . . . 9
SECTION 2.3 Reports by the Property Trustee . . . . . . 10
SECTION 2.4 Periodic Reports to Property Trustee . . . 10
SECTION 2.5 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . 10
SECTION 2.6 Events of Default; Waiver . . . . . . . . . 11
SECTION 2.7 Event of Default; Notice . . . . . . . . . 13
ARTICLE III ORGANIZATION . . . . . . . . . . . . . . . . . 14
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . 14
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . 14
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . 14
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . 14
SECTION 3.5 Title to Property of the Trust . . . . . . 15
SECTION 3.6 Powers and Duties of the Regular Trustees . 15
SECTION 3.7 Prohibition of Actions by the Trust and
the Trustees . . . . . . . . . . . . . . 18
SECTION 3.8 Powers and Duties of the Property Trustee . 20
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee . . . . . . . . . . . . 23
SECTION 3.10 Certain Rights of Property Trustee . . . . 25
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . 28
SECTION 3.12 Execution of Documents . . . . . . . . . . 28
SECTION 3.13 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . 29
SECTION 3.14 Duration of Trust . . . . . . . . . . . . 29
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . 29
ARTICLE IV SPONSOR . . . . . . . . . . . . . . . . . . . 31
SECTION 4.1 Sponsor's Purchase of Convertible Common
Securities . . . . . . . . . . . . . . . 31
SECTION 4.2 Responsibilities of the Sponsor . . . . . . 31
SECTION 4.3 Covenants of Sponsor . . . . . . . . . . . 32
ARTICLE V TRUSTEES . . . . . . . . . . . . . . . . . . . 32
SECTION 5.1 Number of Trustees . . . . . . . . . . . . 32
SECTION 5.2 Delaware Trustee . . . . . . . . . . . . . 33
SECTION 5.3 Property Trustee; Eligibility . . . . . . . 33
SECTION 5.4 Qualifications of Regular Trustees and
Delaware Trustee Generally . . . . . . . 34
SECTION 5.5 Initial Trustees . . . . . . . . . . . . . 34
SECTION 5.6 Appointment, Removal and Resignation
of Trustees . . . . . . . . . . . . . . 34
SECTION 5.7 Vacancies among Trustees . . . . . . . . . 36
SECTION 5.8 Effect of Vacancies . . . . . . . . . . . . 36
SECTION 5.9 Merger of a Trustee . . . . . . . . . . . . 37
SECTION 5.10 Meetings . . . . . . . . . . . . . . . . . 37
SECTION 5.11 Delegation of Power . . . . . . . . . . . . 38
ARTICLE VI DISTRIBUTIONS . . . . . . . . . . . . . . . . 38
SECTION 6.1 Distributions . . . . . . . . . . . . . . . 38
ARTICLE VII ISSUANCE OF SECURITIES . . . . . . . . . . . . 38
SECTION 7.1 General Provisions Regarding Securities . . 38
ARTICLE VIII TERMINATION OF TRUST . . . . . . . . . . . . . 40
SECTION 8.1 Termination of Trust . . . . . . . . . . . 40
ARTICLE IX TRANSFER OF INTERESTS . . . . . . . . . . . . 41
SECTION 9.1 Transfer of Securities . . . . . . . . . . 41
SECTION 9.2 Transfer of Certificates . . . . . . . . . 41
SECTION 9.3 Deemed Security Holders . . . . . . . . . . 42
SECTION 9.4 Book Entry Interests . . . . . . . . . . . 42
SECTION 9.5 Notices to Clearing Agency . . . . . . . . 43
SECTION 9.6 Appointment of Successor Clearing Agency . 43
SECTION 9.7 Definitive Preferred Security
Certificates . . . . . . . . . . . . . . 43
SECTION 9.8 Mutilated, Destroyed, Lost or
Stolen Certificates . . . . . . . . . . 44
ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS . . . . . . . 45
SECTION 10.1 Liability . . . . . . . . . . . . . . . . 45
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . 46
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . . . 46
SECTION 10.4 Indemnification . . . . . . . . . . . . . 47
SECTION 10.5 Outside Businesses . . . . . . . . . . . . 48
ARTICLE XI ACCOUNTING . . . . . . . . . . . . . . . . . . 49
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . 49
SECTION 11.2 Certain Accounting Matters . . . . . . . . 49
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . 50
SECTION 11.4 Withholding . . . . . . . . . . . . . . . 50
ARTICLE XII AMENDMENTS AND MEETINGS . . . . . . . . . . . 51
SECTION 12.1 Amendments . . . . . . . . . . . . . . . . 51
SECTION 12.2 Meetings of the Holders of Securities;
Action by Written Consent . . . . . . . 53
ARTICLE XIII REPRESENTATIONS OF PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE . . . . . . . . . . 55
SECTION 13.1 Representations and Warranties of
Property Trustee . . . . . . . . . . . 55
SECTION 13.2 Representations and Warranties of
Delaware Trustee . . . . . . . . . . . 56
ARTICLE XIV MISCELLANEOUS . . . . . . . . . . . . . . . . 57
SECTION 14.1 Notices . . . . . . . . . . . . . . . . . 57
SECTION 14.2 Governing Law . . . . . . . . . . . . . . 58
SECTION 14.3 Intention of the Parties . . . . . . . . . 58
SECTION 14.4 Headings . . . . . . . . . . . . . . . . . 58
SECTION 14.5 Successors and Assigns . . . . . . . . . . 59
SECTION 14.6 Partial Enforceability . . . . . . . . . . 59
SECTION 14.7 Counterparts . . . . . . . . . . . . . . . 59
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
310(a) . . . . . . . . . . . . . . . . . 5.3(a)
310(c) . . . . . . . . . . . . . . . . . Inapplicable
311(c) . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . 2.2(b)
313 . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . Inapplicable
314(f) . . . . . . . . . . . . . . . . . Inapplicable
315(a) . . . . . . . . . . . . . . . . . 3.9(b)
315(c) . . . . . . . . . . . . . . . . . 3.9(a)
315(d) . . . . . . . . . . . . . . . . . 3.9(a)
316(a) . . . . . . . . . . . . . . . . . Annex I
316(c) . . . . . . . . . . . . . . . . . 3.6(e)
_______________
* This Cross-Reference Table does not constitute part
of the Declaration and shall not affect the
interpretation of any of its terms or provisions.