AMENDED AND RESTATED DECLARATION
OF TRUST
Ingersoll-Rand Financing I
Dated as of March 23, 1998
TABLE OF CONTENTS
Page
ARTICLE I INTERPRETATION AND DEFINITIONS
SECTION 1.1 DEFINITIONS 1
ARTICLE II TRUST INDENTURE ACT
SECTION 2.1 TRUST INDENTURE ACT; APPLICATION 10
SECTION 2.2 LISTS OF HOLDERS OF SECURITIES 10
SECTION 2.3 REPORTS BY THE INSTITUTIONAL TRUSTEE 11
SECTION 2.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE 11
SECTION 2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT 11
SECTION 2.6 EVENTS OF DEFAULT; WAIVER 11
SECTION 2.7 EVENT OF DEFAULT; NOTICE 13
ARTICLE III ORGANIZATION
SECTION 3.1 NAME 13
SECTION 3.2 OFFICE 13
SECTION 3.3 PURPOSE 13
SECTION 3.4 AUTHORITY 14
SECTION 3.5 TITLE TO PROPERTY OF THE TRUST 14
SECTION 3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES 14
SECTION 3.7 PROHIBITION OF ACTIONS BY THE TRUST AND
THE TRUSTEES 17
SECTION 3.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE 17
SECTION 3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE
INSTITUTIONAL TRUSTEE 19
SECTION 3.10 CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE 21
SECTION 3.11 DELAWARE TRUSTEE 22
SECTION 3.12 EXECUTION OF DOCUMENTS 22
SECTION 3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES 23
SECTION 3.14 DURATION OF TRUST 23
SECTION 3.15 MERGERS 23
ARTICLE IV SPONSOR
SECTION 4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES 24
SECTION 4.2 RIGHTS AND RESPONSIBILITIES OF THE SPONSOR 25
SECTION 4.3 RIGHT TO PROCEED 25
SECTION 4.4 EXPENSES 25
ARTICLE V TRUSTEES
SECTION 5.1 NUMBER OF TRUSTEES 26
SECTION 5.2 DELAWARE TRUSTEE 26
SECTION 5.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY 27
SECTION 5.4 CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND
DELAWARE TRUSTEE GENERALLY 28
SECTION 5.5 REGULAR TRUSTEES 28
SECTION 5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF
TRUSTEES 28
SECTION 5.7 VACANCIES AMONG TRUSTEES 30
SECTION 5.8 EFFECT OF VACANCIES 30
SECTION 5.9 MEETINGS 30
SECTION 5.10 DELEGATION OF POWER 30
SECTION 5.11 MERGER, CONVERSION. CONSOLIDATION OR
SUCCESSION TO BUSINESS 31
ARTICLE VI THE SECURITIES
SECTION 6.1 DESIGNATION AND NUMBER. 31
SECTION 6.2 DISTRIBUTIONS. 31
SECTION 6.3 LIQUIDATION DISTRIBUTION UPON DISSOLUTION. 33
SECTION 6.4 REDEMPTION AND DISTRIBUTION 33
SECTION 6.5 REDEMPTION OR DISTRIBUTION PROCEDURES. 34
SECTION 6.6 REPAYMENT AT OPTION OF HOLDERS. 35
SECTION 6.7 VOTING RIGHTS - CAPITAL SECURITIES. 36
SECTION 6.8 VOTING RIGHTS - COMMON SECURITIES. 38
SECTION 6.9 AMENDMENTS TO DECLARATION AND INDENTURE. 39
SECTION 6.10 REFERENCE TO PRO RATA. 39
SECTION 6.11 RANKING. 40
SECTION 6.12 ACCEPTANCE OF SECURITIES GUARANTEE AND
INDENTURE. 40
SECTION 6.13 NO PREEMPTIVE RIGHTS 40
SECTION 6.14 MISCELLANEOUS 40
SECTION 6.15 PAYING AGENT 41
ARTICLE VII TERMINATION OF TRUST
SECTION 7.1 TERMINATION OF TRUST 41
ARTICLE VIII TRANSFER OF INTERESTS
SECTION 8.1 TRANSFER OF SECURITIES 42
SECTION 8.2 TRANSFER OF CERTIFICATES 42
SECTION 8.3 DEEMED SECURITY HOLDERS 43
SECTION 8.4 BOOK ENTRY INTERESTS 43
SECTION 8.5 NOTICES TO CLEARING AGENCY 43
SECTION 8.6 APPOINTMENT OF SUCCESSOR CLEARING AGENCY 44
SECTION 8.7 DEFINITIVE CAPITAL SECURITY CERTIFICATES 44
SECTION 8.8 MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES 44
ARTICLE IXLIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 9.1 LIABILITY 45
SECTION 9.2 EXCULPATION 45
SECTION 9.3 FIDUCIARY DUTY 46
SECTION 9.4 INDEMNIFICATION 46
SECTION 9.5 OUTSIDE BUSINESSES 49
ARTICLE X ACCOUNTING
SECTION 10.1 FISCAL YEAR 49
SECTION 10.2 CERTAIN ACCOUNTING MATTERS 49
SECTION 10.3 BANKING 50
SECTION 10.4 WITHHOLDING 50
ARTICLE XI AMENDMENTS AND MEETINGS
SECTION 11.1 AMENDMENTS 50
SECTION 11.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION
BY WRITTEN CONSENT 52
ARTICLE XIIREPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND
DELAWARE TRUSTEE
SECTION 12.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL
TRUSTEE 53
SECTION 12.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE
TRUSTEE 54
ARTICLE XIII MISCELLANEOUS
SECTION 13.1 NOTICES 55
SECTION 13.2 GOVERNING LAW 56
SECTION 13.3 INTENTION OF THE PARTIES 56
SECTION 13.4 HEADINGS 56
SECTION 13.5 SUCCESSORS AND ASSIGNS 56
SECTION 13.6 PARTIAL ENFORCEABILITY 56
SECTION 13.7 COUNTERPARTS 56
SECTION 13.8 REMARKETING 56
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
Ingersoll-Rand Financing I
March 23, 1998
AMENDED AND RESTATED DECLARATION OF TRUST (the
"Declaration") dated and effective as of March 23, 1998, by the
Trustees (as defined herein), the Sponsor (as defined herein) and
by the Holders (as defined herein), from time to time, of the
securities representing undivided beneficial interests in the
assets of the Trust to be issued pursuant to this Declaration;
WHEREAS, certain of the Trustees and the Sponsor established
Ingersoll-Rand Financing I (the "Trust"), a trust under the
Business Trust Act (as defined herein) pursuant to a trust
agreement dated as of August 18, 1997 (the "Original
Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on August 18, 1997,
for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer (as defined herein);
WHEREAS, prior to the date hereof, the Sponsor removed a
trustee of the Trust and substituted First Chicago Delaware Inc.
as a trustee of the Trust;
WHEREAS, in connection with such removal and substitution of
trustees, a Restated Certificate of Trust was filed with the
Secretary of State of Delaware on March 19, 1998;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision
of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business
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 Trust and 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 I.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 Annexes and Exhibits are to Articles and Sections of
and Annexes 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.
"Agent" means any Paying Agent.
"Applicable Ownership Interest" means, with respect to
an Income PRIDES and the U.S. Treasury Securities in the Treasury
Portfolio, (A) a 1/40, or 2.5%, undivided beneficial ownership
interest in a $1,000 principal or interest amount of a principal
or interest strip in a U.S. Treasury Security included in such
Treasury Portfolio which matures on or prior to May 15, 2001 and
(B) for each scheduled interest payment date on the Debentures
that occurs after the Tax Event Redemption Date, a .038875%
undivided beneficial ownership interest in a $1,000 face amount
of such U.S. Treasury Security which is a principal or interest
strip maturing on such date.
"Applicable Principal Amount" means either (i) if the
Tax Event Redemption Date occurs prior to May 16, 2001, the
aggregate principal amount of the Debentures corresponding to the
aggregate stated liquidation amount of the Capital Securities
which are components of Income PRIDES on the Tax Event Redemption
Date or (ii) if the Tax Event Redemption occurs on or after May
16, 2001, the aggregate principal amount of the Debentures corre
sponding to the aggregate stated liquidation amount of the
Capital Securities outstanding on such Tax Event Redemption Date.
"Authorized Newspaper" means a daily newspaper, in the
English language, customarily published on each day that is a
Business Day in The City of New York, whether or not published on
days that are Legal Holidays, and of general circulation in The
City of New York. The Authorized Newspaper for the purposes of
the Reset Announcement Date, is currently anticipated to be The
Wall Street Journal.
"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" means any day other than Saturday,
Sunday or any day on which banking institutions in New York City,
in the State of New York, are permitted or required by any
applicable law to close.
"Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code 3801 et seq., as it may be
amended from time to time, or any successor legislation.
"Capital Security" means the 6.22% Capital Securities.
"Capital 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).
"Capital Security Certificate" means a certificate
representing a Capital Security substantially in the form of
Exhibit A-1.
"Certificate" means a Common Security Certificate or a
Capital Security Certificate.
"Clearing Agency" means an organization registered as
a "Clearing Agency" pursuant to Section 17A of the Exchange Act
that is acting as depositary for the Capital Securities and in
whose name or in the name of a nominee of that organization shall
be registered a Global Certificate and which shall undertake to
effect book entry transfers and pledges of the Capital
Securities.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom from
time to time the Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency.
"Closing Date" means the "Closing Time" and each "Date
of Delivery" under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
"Commission" means the Securities and Exchange
Commission.
"Common Security" means the 6.22% Common Securities.
"Common Security Certificate" means a definitive
certificate in fully registered form representing a Common
Security substantially in the form of Exhibit A-2.
"Company Indemnified Person" means (a) any Regular
Trustee; (b) any Affiliate of any Regular Trustee; (c) any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Regular Trustee; or (d) any
officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the
Institutional Trustee at which the corporate trust business of
the Institutional Trustee shall, at any particular time, be
principally administered, which office at the date of execution
of this Declaration is located at One First National Plaza, Suite
0126, Chicago, IL 60670-0126.
"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 Ingersoll-Rand Company, a New
Jersey corporation, in its capacity as issuer of the Debentures
under the Indenture.
"Debenture Trustee" means The Bank of New York, as
trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures" means the series of 6.22% Debentures to
be issued by the Debenture Issuer under the Indenture.
"Debenture Repayment Price" means, with respect to any
Debentures put to the Sponsor on June 1, 2001, an amount per
Debenture equal to $25, plus accumulated and unpaid interest
(including deferred interest, if any).
"Definitive Capital Security Certificates" has the
meaning set forth in Section 8.4.
"Delaware Trustee" has the meaning set forth in
Section 5.2.
"Direction" by a Person means a written direction
signed:
(a) if the Person is a natural person, by that
Person; or
(b) in any other case, in the name of such
Person by one or more Authorized Officers of that Person.
"Direct Action" has the meaning specified in Section
3.8(e).
"Distribution" means a distribution payable to Holders
of Securities in accordance with Section 6.2.
"DTC" means The Depository Trust Company, the initial
Clearing Agency.
"Event of Default" in respect of the Securities means
an Event of Default (as defined in the Indenture) has occurred
and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"Exchange Agent" shall mean the Person acting as
Institutional Trustee.
"Failed Remarketing" has the meaning specified in
Section 5.4(b) of the Purchase Contract Agreement.
"FELINE PRIDES"_ means (A) 14,490,000 units referred
to as Income PRIDES_ with a Stated Amount, per Income PRIDES, of
$25 and (B) at least 1,610,000 units referred to as Growth
PRIDES_ with a face amount, per Growth PRIDES, of $25.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 9.4(b).
"Global Certificate" has the meaning set forth in
Section 8.4.
"Guarantee" means the guarantee agreement to be dated
as of March 23, 1998 of the Sponsor in respect of the Common
Securities and the Capital Securities.
"Holder" or "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 Company Indemnified
Person or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of March 23,
1998, among the Debenture Issuer and the Debenture Trustee, and
any indenture supplemental thereto pursuant to which the
Debentures are to be issued.
"Institutional Trustee" means the Trustee meeting the
eligibility requirements set forth in Section 5.3.
"Institutional Trustee Account" has the meaning set
forth in Section 3.8(c).
"Investment Company" means an investment company as
defined in the Investment Company Act.
"Investment Company Act" means the Investment Company
Act of 1940, as amended from time to time, or any successor
legislation.
"Investment Company Event" means that the Regular
Trustees shall have received an opinion of independent counsel
experienced in practice under the Investment Company Act (an
"Investment Company Event Opinion") to the effect that, as a
result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), which Change
in 1940 Act Law becomes effective on or after the date of the
Prospectus, there is a more than an insubstantial risk that the
Trust is or will be considered an Investment Company which is
required to be registered under the Investment Company Act.
"Legal Action" has the meaning set forth in Section
3.6(g).
"Majority in liquidation amount of the Securities"
means, except as provided in the terms and conditions of the
Capital Securities set forth in Article VI hereto or 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 Capital Securities or Holders of
outstanding 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.
"Ministerial Action" means the taking of an action,
such as filing a form or making an election, or pursuing some
other similar reasonable measure that will have no adverse effect
on the Trust, the Debenture Issuer, the Sponsor or the Holder of
the Securities and will involve no material cost.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by two Authorized Officers of such
Person. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that the officers signing the
Officers' Certificate have read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by the officer in
rendering the Officers' Certificate;
(c) a statement that such officers have made such
examination or investigation as, in such officers' opinion, is
necessary to enable such officers to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of
such officers, such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section
6.15.
"Person" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Pledge Agreement" means the Pledge Agreement dated as
of March 23, 1998 among the Sponsor, The Chase Manhattan Bank, as
collateral agent (the "Collateral Agent") and Custodial Agent
(the "Custodial Agent") and securities intermediary (the
"Securities Intermediary"), and The Bank of New York, as purchase
contract agent (the "Purchase Contract Agent").
"Pricing Agreement" means the pricing agreement
between the Trust, the Debenture Issuer, and the underwriters
designated by the Regular Trustees with respect to the offer and
sale of the Capital Securities.
"Primary Treasury Dealer" means a primary U.S.
government securities dealer in The City of New York.
"Purchase Contract Agreement" means the Purchase
Contract Agreement dated as of March 23, 1998 among The Bank of
New York, as Purchase Contract Agent, and the Sponsor.
"Purchase Contract Settlement Date" means May 16,
2001.
"Put Option" has the meaning specified in Section 6.6.
"Quorum" means a majority of the Regular Trustees or,
if there are only two Regular Trustees, both of them.
"Quotation Agent" means (i) Merrill Lynch Government
Securities, Inc. and its respective successors, provided,
however, that if the foregoing shall cease to be a Primary
Treasury Dealer, the Sponsor shall substitute therefor another
Primary Treasury Dealer and (ii) any other Primary Treasury
Dealer selected by the Sponsor.
"Redemption Amount" means for each Debenture, the
product of (i) the principal amount of such Debenture and (ii) a
fraction whose numerator is the Treasury Portfolio Purchase Price
and whose denominator is the Applicable Principal Amount.
"Redemption Price" means the redemption price per
security equal to the Redemption Amount plus any accrued and
unpaid distributions to the date of redemption.
"Regular Trustee" has the meaning set forth in Section
5.1.
"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.
"Remarketing Agent" means Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated.
"Remarketing Agreement" means the Remarketing
Agreement among the Debenture Issuer, the Trust and The Bank of
New York as Purchase Contract Agent.
"Remarketing Date" shall have the meaning set forth in
the Remarketing Agreement.
"Remarketing Underwriting Agreement" means the
agreement to be dated as of the third Business Day immediately
preceding the Purchase Contract Settlement Date among the Compa
ny, the Trust, The Bank of New York, and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
"Reset Agent" means a nationally recognized investment
banking firm chosen by the Sponsor to determine the Reset Rate.
It is currently anticipated that Merrill Lynch & Co. will act in
such capacity.
"Reset Announcement Date" means the tenth (10)
Business Day immediately preceding the Purchase Contract
Settlement Date.
"Reset Rate" means the distribution rate per annum (to
be determined by the Reset Agent), equal to the sum of (X) the
Reset Spread and (Y) the rate of interest on the Two-Year
Benchmark Treasury in effect on the third Business Day
immediately preceding the Purchase Contract Settlement Date, that
the Capital Securities should bear in order for the Capital
Securities to have an approximate market value of 100.5% of their
aggregate liquidation amount on the third Business Day
immediately preceding the Purchase Contract Settlement Date;
provided, that the Sponsor may limit such Reset Spread to be no
higher than 200 basis points (2%).
"Reset Spread" means a spread amount to be determined
by the Reset Agent on the tenth (10) Business Day immediately
preceding the Purchase Contract Settlement Date.
"Responsible Officer" means, with respect to the
Institutional Trustee, any officer within the Corporate Trust
Office of the Institutional Trustee, including, without
limitation, any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or
other officer of the Corporate Trust Office of the Institutional
Trustee assigned by the Institutional Trustee to administer its
corporate trust matters 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.
"Rule 3a-5" means Rule 3a-5 under the Investment
Company Act.
"Securities" means the Common Securities and the
Capital Securities.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"Sponsor" means Ingersoll-Rand Company, a New Jersey
corporation, or any successor entity in a merger or
consolidation, in its capacity as sponsor of the Trust.
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" means the receipt by the Regular Trustees
of an opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of
(a) any amendment to, or change (including any announced proposed
change) in, the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority
thereof or therein affecting taxation, (b) any amendment to or
change in an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency
or regulatory authority or (c) any interpretation or
pronouncement that provides for a position with respect to such
laws or regulations that differs from the generally accepted
position on the date the Securities are issued, which amendment
or change is effective or which interpretation or pronouncement
is announced on or after the date of issuance of the Securities
under the Declaration, there is more than an insubstantial risk
that (i) interest payable by the Debenture Issuer on the
Debentures would not be deductible, in whole or in part, by the
Debenture Issuer for federal income tax purposes or (ii) the
Trust would be subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Tax Event Redemption" means, if a Tax Event shall
occur and be continuing, the redemption of the Debentures, at the
option of the Debenture Issuer, in whole but not in part, on not
less than 30 days nor more than 60 days notice.
"Tax Event Redemption Date" means the date upon which
a Tax Event Redemption is to occur.
"10% in liquidation amount of the Securities" means,
except as provided in the terms of the Capital Securities or 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 Capital Securities or Holders of
outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation
amount (including the stated amount that would be paid on
repayment, 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.
"Termination Event" has the meaning set forth in
Section 1 of the Purchase Contract Agreement.
"Treasury Portfolio" means, with respect to the
Applicable Principal Amount of Debentures (a) if the Tax Event
Redemption Date occurs prior to May 16, 2001, a portfolio of zero-
coupon U.S. Treasury Securities consisting of (i) principal or
interest strips of U.S. Treasury Securities which mature on or
prior to May 15, 2001 in an aggregate amount equal to the
Applicable Principal Amount and (ii) with respect to each
scheduled interest payment date on the Debentures that occurs
after the Tax Event Redemption Date, principal or interest strips
of U.S. Treasury Securities which mature on or prior to such date
in an aggregate amount equal to the aggregate interest payment
that would be due on the Applicable Principal Amount of the
Debentures on such date, and (b) if the Tax Event Redemption Date
occurs after May 16, 2001, a portfolio of zero-coupon U.S.
Treasury Securities consisting of (i) principal or interest
strips of U.S. Treasury Securities which mature on or prior to
May 15, 2003 in an aggregate amount equal to the Applicable
Principal Amount and (ii) with respect to each scheduled interest
payment date on the Debentures that occurs after the Tax Event
Redemption Date, principal or interest strips of such U.S. Trea
sury Securities which mature on or prior to such date in an
aggregate amount equal to the aggregate interest payment that
would be due on the Applicable Principal Amount of the Debentures
on such date.
"Treasury Portfolio Purchase Price" means the lowest
aggregate price quoted by the Primary Treasury Dealer to the
Quotation Agent on the third Business Day immediately preceding
the Tax Event Redemption Date for the purchase of the Treasury
Portfolio for settlement on the Tax Event Redemption Date.
"Treasury Regulations" means the income tax
regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such
regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Treasury Securities" has the meaning set forth in
Section 1 of the Purchase Contract Agreement.
"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 Indenture Act" means the Trust Indenture Act of
1939, as amended from time to time, or any successor legislation.
"Two-Year Benchmark Treasury" means direct obligations
of the United States (which may be obligations traded on a when-
issued basis only) having a maturity comparable to the remaining
term to maturity of the Trust Securities, as agreed upon by the
Sponsor and the Reset Agent. The rate for the Two-Year Benchmark
Treasury will be the bid side rate displayed at 10:00 A.M., New
York City time, on the third Business Day immediately preceding
the Purchase Contract Settlement Date in the Telerate system (or
if the Telerate system is (a) no longer available on the third
Business Day immediately preceding the Purchase Contract
Settlement Date or (b) in the opinion of the Reset Agent (after
consultation with the Sponsor) no longer an appropriate system
from which to obtain such rate, such other nationally recognized
quotation system as, in the opinion of the Reset Agent (after
consultation with the Sponsor) is appropriate). If such rate is
not so displayed, the rate for the Two-Year Benchmark Treasury
shall be, as calculated by the Reset Agent, the yield to maturity
for the Two-Year Benchmark Treasury, expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis, and computed by taking
the arithmetic mean of the secondary market bid rates, as of
10:30 A.M., New York City time, on the third Business Day
immediately preceding the Purchase Contract Settlement Date of
three leading United States government securities dealers
selected by the Reset Agent (after consultation with the Sponsor)
(which may include the Reset Agent or an Affiliate thereof).
"Underwriting Agreement" means the Underwriting
Agreement for the offering and sale of Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION II.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 Institutional 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 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
(d) Any 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 II.2 LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees, on
behalf of the Trust, shall provide the Institutional Trustee (i)
within 14 days after each record date for payment of
Distributions, a list, in such form as the Institutional 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 Institutional Trustee by
the Sponsor and the Regular Trustees on behalf of the Trust, and
(ii) at any other time, within 30 days of receipt by the Trust of
a written request by the Institutional Trustee for a List of
Holders as of a date no more than 14 days before such List of
Holders is given to the Institutional Trustee. The Institutional
Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the Lists of Holders
given to it or which it receives in the capacity as Paying Agent
(if acting in such capacity), provided that the Institutional
Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its
obligations under 311(a), 310(b) and 312(b) of the Trust
Indenture Act.
SECTION II.3 REPORTS BY THE INSTITUTIONAL TRUSTEE.
Within 60 days after May 15 of each year, commencing May 15,
1999, the Institutional Trustee shall provide to the Holders of
the Trust Securities such reports as are required by 313 of the
Trust Indenture Act, if any, in the form and in the manner
provided by 313 of the Trust Indenture Act. The Institutional
Trustee shall also comply with the requirements of 313(d) of the
Trust Indenture Act.
SECTION II.4 PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE.
Each of the Sponsor and the Regular Trustees, on behalf of
the Trust, shall provide to the Institutional Trustee such
documents, reports and information as required by 314 (if any)
and the compliance certificate required by 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by 314 of the Trust Indenture Act.
SECTION II.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor and the Regular Trustees, on behalf of
the Trust, shall provide to the Institutional 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 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer
pursuant to 314(c) (1) may be given in the form of an Officers'
Certificate.
SECTION II.6 EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of
Capital Securities may, by vote, on behalf of the Holders of all
of the Capital Securities, waive any past Event of Default in
respect of the Capital Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable;
or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the
Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under this Declaration may
only be waived by the vote of the Holders of at least the
proportion in liquidation amount of the Capital Securities
that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu
of 316(a) (1)(B) of the Trust Indenture Act and such 316(a)
(1) (B) of the Trust Indenture Act is hereby expressly excluded
from this Declaration and the Capital Securities, as permitted by
the Trust Indenture Act. Upon such waiver, any such default shall
cease to exist, and any Event of Default with respect to the
Capital 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 an Event of
Default with respect to the Capital Securities or impair any
right consequent thereon. Any waiver by the Holders of the
Capital Securities of an Event of Default with respect to the
Capital Securities shall also be deemed to constitute a waiver by
the Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the
Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all
of the Common Securities, waive any past Event of Default with
respect to the Common Securities and its consequences, provided
that, if the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have
waived such Event of Default under this Declaration as
provided below in this Section 2.6(b), the Event of Default
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority
to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under this Declaration as provided below in this Section
2.6(b), the Event of Default under this Declaration may only
be waived by the vote of the Holders of at least the
proportion in liquidation amount of the Common Securities
that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed
to have waived any such Event of Default and all Events of
Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the
Capital Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Institutional Trustee will be
deemed to be acting solely on behalf of the Holders of the
Capital Securities and only the Holders of the Capital Securities
will have the right to direct the Institutional Trustee in
accordance with the terms of the Securities. The foregoing
provisions of this Section 2.6(b) shall be in lieu of
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Subject to
the foregoing provisions of this Section 2.6(b), upon such
waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by
the Institutional Trustee at the direction of the Holders of the
Capital Securities constitutes a waiver of the corresponding
Event of Default with respect to the Capital Securities under
this Declaration. Any waiver of an Event of Default under the
Indenture by the Institutional Trustee at the direction of the
Holders of the Capital Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of
the corresponding Event of Default under this Declaration with
respect to the Common Securities for all purposes of this
Declaration without further act, vote or consent of the Holders
of the Common Securities. The foregoing provisions of this
Section 2.6(c) shall be in lieu of 316(a)(1)(B) of the Trust
Indenture Act and such 316(a)(1)(B) of the Trust Indenture Act
is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION II.7 EVENT OF DEFAULT; NOTICE.
(a) The Institutional Trustee shall, within 90 days after
the occurrence of an Event of Default, actually known to a
Responsible Officer of the Institutional Trustee, transmit by
mail, first class postage prepaid, to the Holders of the
Securities, notices of all such defaults with respect to the
Securities, 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 an Event of
Default as defined in the Indenture, not including any periods of
grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in
the payment of principal of (or premium, if any) or interest on
any of the Debentures, the Institutional Trustee shall be
protected in withholding such notice if and so long as a
Responsible Officer of the Institutional Trustee in good faith
determines that the withholding of such notice is in the
interests of the Holders of the Securities.
(b) The Institutional Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 501 and 503 of the
Indenture; or
(ii) any default as to which the Institutional Trustee
shall have received written notice or of which a Responsible
Officer of the Institutional Trustee charged with the
administration of this Declaration shall have actual
knowledge.
ARTICLE III
ORGANIZATION
SECTION III.1 NAME.
The Trust is named "Ingersoll-Rand Financing I," as such
name may be modified from time to time by the Regular Trustees
following written notice to the Holders of the 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 III.2 OFFICE.
The address of the principal office of the Trust is c/o
Ingersoll-Rand Company, 200 Chestnut Ridge Road, Woodcliff Lake,
New Jersey 07675. On ten Business Days written notice to the
Institutional Trustee and Holders of the Securities, the Regular
Trustees may designate another principal office.
SECTION III.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities and use the gross proceeds from
such sale to acquire the Debentures, and (b) except as otherwise
set forth herein, to engage in only those other activities
necessary, appropriate, convenient 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. It is the intent of the
parties to this Declaration for the Trust to be classified as a
grantor trust for United States federal income tax purposes under
Subpart E of Subchapter J of the Code, pursuant to which the
beneficial owners of the Capital Securities and the Common
Securities will be the owners of the Trust for United States
federal income tax purposes, and such owners will include
directly in their gross income the income, gain, deduction or
loss of the Trust as if the Trust did not exist. By the
acceptance of this Trust, neither the Trustees, the Sponsor nor
the Holders of the Capital Securities or Common Securities will
take any position for United States federal income tax purposes
which is contrary to the classification of the Trust as a grantor
trust.
SECTION III.4 AUTHORITY.
Subject to the limitations provided in this Declaration and
to the specific duties of the Institutional 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
Institutional Trustee on behalf of the Trust 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 III.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the
Debentures and the Institutional Trustee Account or as otherwise
provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. A Holder 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 III.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 Capital Securities and the
Common Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of
Capital Securities and no more than one series of Common
Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous
issuance of both Capital Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and sale of the Capital
Securities to:
(i) assist and filing with the Commission the
registration statement and the prospectus relating to the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments or supplements, thereto, pertaining
to the Capital Securities and to take any other action
relating to the registration and sale of the Capital
Securities under federal and state securities laws;
(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
FELINE PRIDES in any State in which the Sponsor has
determined to qualify or register such FELINE PRIDES for
sale;
(iii)assist in filing an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock National Market
for listing upon notice of issuance of any Capital
Securities;
(iv) assist in filing with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the
registration of the Capital Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into the Remarketing Agreement
and Remarketing Underwriting Agreement providing for the
sale of the FELINE PRIDES;
(c) to acquire the Debentures with the proceeds of the
sale of the Capital Securities and the Common Securities;
provided, however, that the Regular Trustees shall cause legal
title to the Debentures to be held of record in the name of the
Institutional Trustee for the benefit of the Trust and the
Holders of the Capital Securities and the Holders of Common
Securities;
(d) to give the Sponsor and the Institutional Trustee
prompt written notice of the occurrence of a Tax Event or an
Investment Company Event; provided that the Regular Trustees
shall consult with the Sponsor before taking or refraining from
taking any Ministerial Action in relation to a Tax Event or
Investment Company 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 316(c) of the
Trust Indenture Act, Distributions, voting rights, repayments,
redemptions and exchanges, and to issue relevant notices to the
Holders of Capital Securities and Holders of Common Securities as
to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the
Securities and this Declaration;
(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(e) the Institutional 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 314(a)(4) of the
Trust Indenture Act to the Institutional Trustee, which
certificate may be executed by any Regular Trustee;
(k) to incur expenses that are necessary, appropriate,
convenient 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 of any notice received from the Debenture Issuer of
its election to defer payments of interest on the Debentures by
extending the interest payment period under the Indenture;
(n) 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
Capital Securities or to enable the Trust to effect the purposes
for which the Trust was created;
(o) 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, 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 Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax
purposes, provided that such action relating to this clause
(iii) does not adversely affect the interests of Holders;
(p) 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;
(q) 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, appropriate, convenient or
incidental to the foregoing; and
(r) if applicable, to solicit holders of Securities which
form a part of the Income PRIDES to timely instruct the Purchase
Contract Agent in order to enable the Purchase Contract Agent to
vote such Securities.
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 Institutional Trustee
set forth in Section 3.8. No permissive power or authority
available to the Regular Trustees shall be construed to be a
duty.
Any expenses incurred by the Regular Trustees pursuant to
this Section 3.6 shall be reimbursed by the Sponsor.
SECTION III.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE
TRUSTEES.
(a) The Trust shall not, and the Trustees (including the
Institutional Trustee) shall cause the Trust not to, engage in
any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Trustees
(including the Institutional Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from
holding the Debentures, 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 the Debentures and
any cash proceeds received with respect thereto;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness for
borrowed money, other than loans represented by the
Debentures;
(v) possess any power or otherwise act in such a way
as to vary the assets of the Trust 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 provided in this Declaration, (A)
direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default that is waivable
under the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or
the Debentures unless the Trust shall have received an
opinion of counsel to the effect that such modification will
not cause the Trust to be classified as other than a grantor
trust for United States federal income tax purposes.
SECTION III.8 POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE.
(a) The legal title to the Debentures shall be owned by
and held of record in the name of the Institutional Trustee in
trust for the benefit of the Trust and the Holders of the
Securities. The right, title and interest of the Institutional
Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Institutional Trustee in
accordance with Section 5.6. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its
right, title and interest in the Debentures to the Regular
Trustees or to the Delaware Trustee (if the Institutional Trustee
does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Institutional Trustee Account")
in the name of and under the exclusive control of the
Institutional Trustee on behalf of the Trust and the Holders
of the Securities and, upon the receipt of payments of funds
made in respect of the Debentures held by the Institutional
Trustee, deposit such funds into the Institutional Trustee
Account and make payments to the Holders of the Capital
Securities and Holders of the Common Securities from the
Institutional Trustee Account in accordance with Section
6.1. Funds in the Institutional Trustee Account shall be
held uninvested until disbursed in accordance with this
Declaration. The Institutional Trustee Account shall be an
account that is maintained with a banking institution the
rating on whose long-term unsecured indebtedness is rated at
least "A" or above by a "nationally recognized statistical
rating organization", as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary, appropriate, convenient or incidental to effect
the repayment of the Capital Securities and the Common
Securities to the extent the Debentures mature or are
redeemed or the Put Option is exercised; 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, appropriate, convenient or incidental to
effect the distribution of the Debentures to Holders of
Securities upon the occurrence of certain special events (as
may be defined in the terms of the Securities) arising from
a change in law or a change in legal interpretation or other
specified circumstances pursuant to the terms of the
Securities.
(d) The Institutional Trustee shall take all actions and
perform such duties as may be specifically required of the
Institutional Trustee pursuant to the terms of the Securities and
this Declaration.
(e) The Institutional Trustee shall take any Legal Action
which arises out of or in connection with an Event of Default of
which a Responsible Officer of the Institutional Trustee has
actual knowledge or the Institutional Trustee's duties and
obligations under this Declaration, the Business Trust Act or the
Trust Indenture Act; provided, however, that if the Institutional
Trustee fails to enforce its rights under the Debentures after a
Holder of Capital Securities has made a written request, such
Holder of Capital Securities may, to the fullest extent permitted
by applicable law, institute a legal proceeding against the
Debenture Issuer without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest on or principal
of the Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may
directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
amount of the Capital Securities of such holder (a "Direct
Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of
the Holders of Common Securities will be subrogated to the rights
of such Holders of Capital Securities. In connection with such
Direct Action, the Debenture Issuer shall be subrogated to the
rights of such Holder of Capital Securities with respect to
payments on the Capital Securities under this Declaration to the
extent of any payment made by the Debenture Issuer to such Holder
of Capital Securities in such Direct Action. Except as provided
in the preceding sentences, the Holders of Capital Securities
will not be able to exercise directly any other remedy available
to the Holders of the Debentures.
(f) The Institutional Trustee shall continue to serve as a
Trustee until 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 Institutional Trustee has been
appointed and has accepted that appointment in accordance
with Section 5.6.
(g) The Institutional Trustee shall have the legal power
to exercise all of the rights, powers and privileges of a holder
of Debentures under the Indenture and, if an Event of Default
actually known to a Responsible Officer of the Institutional
Trustee occurs and is continuing, the Institutional Trustee
shall, for the benefit of Holders of the Securities, enforce its
rights as holder of the Debentures subject to the rights of the
Holders pursuant to the terms of such Securities and this
Declaration.
(h) Subject to this Section 3.8, the Institutional Trustee
shall have none of the duties, liabilities, powers or the
authority of the Regular Trustees set forth in Section 3.6.
The Institutional 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 Institutional Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION III.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE
INSTITUTIONAL TRUSTEE.
(a) The Institutional Trustee, before the occurrence of
any Event of Default and after the curing or waiver of all 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 Institutional Trustee. In case an Event
of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the
Institutional Trustee has actual knowledge, the Institutional
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 Institutional 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 an Event of Default
and after the curing or waiving of all such Events of
Default that may have occurred:
(A the duties and obligations of the
Institutional Trustee shall be determined solely by
the express provisions of this Declaration and the
Institutional 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 Institutional Trustee;
and
(B in the absence of bad faith on the part of
the Institutional Trustee, the Institutional 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 Institutional Trustee and 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 Institutional Trustee, the
Institutional 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 Institutional Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in
ascertaining the pertinent facts;
(iii the Institutional Trustee shall not be liable
with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the
Holders of not less than a Majority in liquidation amount of
the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power
conferred upon the Institutional Trustee under this
Declaration;
(iv no provision of this Declaration shall require
the Institutional 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 indemnity reasonably satisfactory to the
Institutional Trustee against such risk or liability is not
reasonably assured to it;
(v the Institutional Trustee's sole duty with
respect to the custody, safe keeping and physical
preservation of the Debentures and the Institutional Trustee
Account shall be to deal with such property in a similar
manner as the Institutional Trustee deals with similar
property for its fiduciary accounts generally, subject to
the protections and limitations on liability afforded to the
Institutional Trustee under this Declaration, the Business
Trust Act and the Trust Indenture Act;
(vi the Institutional Trustee shall have no duty or
liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection
therewith;
(vii the Institutional Trustee shall not be liable for
any interest on any money received by it except as it may
otherwise agree with the Sponsor. Money held by the
Institutional Trustee need not be segregated from other
funds held by it except in relation to the Institutional
Trustee Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
(viii the Institutional Trustee shall not be
responsible for monitoring the compliance by the Regular
Trustees or the Sponsor with their respective duties under
this Declaration, nor shall the Institutional Trustee be
liable for any default or misconduct of the Regular Trustees
or the Sponsor.
SECTION III.10 CERTAIN RIGHTS OF INSTITUTIONAL TRUSTEE.
(a Subject to the provisions of Section 3.9:
(i the Institutional Trustee may conclusively 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 a Direction or an Officers'
Certificate;
(iii whenever in the administration of this
Declaration, the Institutional Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the
Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv the Institutional 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 Institutional 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
Institutional 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 Institutional 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
Institutional Trustee security and indemnity, reasonably
satisfactory to the Institutional Trustee, against the
costs, expenses (including attorneys' fees and expenses and
the expenses of the Institutional Trustee's agents, nominees
or custodians) 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 Institutional
Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Institutional
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by
this Declaration;
(vii the Institutional Trustee shall be under no
obligation to conduct an 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
Institutional Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters
as it may see fit;
(viii the Institutional Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Institutional
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 Institutional Trustee or
its agents hereunder shall bind the Trust and the Holders of
the Securities, and the signature of the Institutional
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
Institutional 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 Institutional
Trustee's or its agent's taking such action;
(x whenever in the administration of this
Declaration the Institutional Trustee shall deem it
desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder,
the Institutional 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
Institutional Trustee under the terms of the Securities in
respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall
be protected in conclusively relying on or acting in
accordance with such instructions; and
(xi except as otherwise expressly provided by this
Declaration, the Institutional 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 Institutional 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 Institutional 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 Institutional Trustee shall be
construed to be a duty.
SECTION III.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 Trustees
(except as required under the Business Trust Act) 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 3807 of the Business
Trust Act.
SECTION III.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.
SECTION III.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained in this Declaration 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 III.14 DURATION OF TRUST.
The Trust, unless dissolved pursuant to the provisions of
Article VIII hereof, shall dissolve on March , 2005.
SECTION III.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) or Section 6.3
(b The Trust may, with the consent of the Regular
Trustees or, if there are more than two, a majority of the
Regular Trustees and without the consent of the Holders of the
Securities, the Delaware Trustee or the Institutional Trustee,
consolidate, amalgamate, merge with or into, or be replaced by a
trust organized as such under the laws of any State; provided
that if the Trust is not the surviving entity:
(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 Capital Securities other
securities having substantially the same terms as the
Capital Securities (the "Successor Securities"), so
long as the Successor Securities rank the same as the
Capital Securities rank with respect to Distributions
and payments upon liquidation, redemption, repayment
and otherwise and substitutes for the Common
Securities other securities having substantially the
same terms as the Common Securities (the "Successor
Common Securities"), so long as the Successor Common
Securities rank the same as the Common Securities rank
with respect to Distributions and payments upon
liquidation, redemption, repayment and otherwise;
(ii the Debenture Issuer expressly acknowledges a
trustee of the Successor Entity that possesses the same
powers and duties as the Institutional Trustee as the holder
of the Debentures;
(iii if necessary, the Capital Securities or any
Successor Securities will be listed, or any Successor
Securities will be listed upon notification of issuance, on
any national securities exchange or with another
organization on which the Capital Securities are then listed
or quoted;
(iv such merger, consolidation, amalgamation or
replacement does not cause the Capital 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 and any Successor Common
Securities) in any material respect (other than with respect
to any dilution of such Holders' interests in the successor
entity);
(vi such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii prior to such merger, consolidation, amalgamation
or replacement, the Sponsor has 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 and
Successor Common Securities) in any material respect
(other than with respect to any dilution of the
Holders' interest in the successor entity);
(B following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an
Investment Company; and
(C following such merger, consolidation,
amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a
grantor trust for United States federal income tax
purposes; and
(viii the Sponsor guarantees the obligations of
such Successor Entity under the Successor Securities and
Successor Common Securities at least to the extent provided
by the Guarantee.
(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 IV.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all of the
Common Securities issued by the Trust, in an amount at least
equal to 3.0% of the total capital of the Trust, at the same time
as the Capital Securities are sold.
SECTION IV.2 RIGHTS AND RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue, sale and, if necessary, the
remarketing of the Capital Securities, the Sponsor shall have the
exclusive right and responsibility to engage in the following
activities:
(a to prepare, execute and file with the Commission a
registration statement on Form S-3 in relation to the Capital
Securities, including any amendments thereto;
(b if necessary, to determine the States in which to take
appropriate action to qualify or register for sale all or part of
the FELINE PRIDES 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 if necessary, to prepare, execute and file 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 Capital Securities;
(d if necessary, to prepare, execute and file with the
Commission of a registration statement on Form 8-A relating to
the registration of the Capital Securities under Section 12(b) of
the Exchange Act, including any amendments thereto;
(e to negotiate the terms of the Remarketing Agreement,
the Remarketing Underwriting Agreement, the Underwriting
Agreement and the Pricing Agreement providing for the sale of the
FELINE PRIDES; and
(f) execute and enter into the Underwriting Agreement
and Pricing Agreement.
SECTION IV.3 RIGHT TO PROCEED.
The Sponsor acknowledges the rights of Holders to institute
a Direct Action as set forth in Section 3.8(e) hereto.
SECTION IV.4 EXPENSES.
In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with
the sale of the Securities by the Trust, the Debenture Issuer, in
its capacity as borrower with respect to the Debentures, is
required under Section 5.1 of the First Supplemental Indenture
to:
(a pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to the
underwriters payable pursuant to the Underwriting Agreement and
Pricing Agreement and compensation of the Debenture Trustee under
the Indenture in accordance with the provisions of the Indenture;
(b be responsible for and shall pay all debts and
obligations (other than with respect to the Securities) and all
costs and expenses of the Trust (including, but not limited to,
costs and expenses relating to the organization, maintenance and
dissolution of the Trust, the offering, sale and issuance of the
Securities (including commissions to the underwriters in
connection therewith), the fees and expenses (including
reasonable counsel fees and expenses) of the Institutional
Trustee, the Delaware Trustee and the Regular Trustees (including
any amounts payable under Article IX of this Declaration), the
costs and expenses relating to the operation of the Trust,
including, without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating,
travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets and the enforcement by
the Institutional Trustee of the rights of the Holders of the
Securities;
(c be primarily liable for any indemnification
obligations arising under Section 9.4 with respect to this
Declaration; and
(d pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes of
the Trust.
The Sponsor's obligations under this Section 4.4 shall be
for the benefit of, and shall be enforceable by, any person to
whom such debts, obligations, costs, expenses and taxes are owed
(a "Creditor") whether or not such Creditor has received notice
hereof. Any such Creditor may enforce the Sponsor's obligations
under this Section 4.4 directly against the Sponsor and the
Sponsor irrevocably waives any right or remedy to require that
any such Creditor take any action against the Trust or any other
Person before proceeding against the Sponsor. The Debenture
Issuer agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the
provisions of this Section 4.4.
ARTICLE V
TRUSTEES
SECTION V.1 NUMBER OF TRUSTEES.
The number of Trustees initially shall be five (5), 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 Common Securities voting
as a class at a meeting of the Holders of the Common Securities;
provided, however, that, the number of Trustees shall in no event
be less than two (2), provided further that (1) one Trustee,
shall meet the requirements of Section 5.2 (a) or (b); (2) there
shall be at least one Trustee who is an employee or officer of,
or is affiliated with the Sponsor (a "Regular Trustee"); and (3)
one Trustee shall be the Institutional Trustee for so long as
this Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Institutional Trustee may also
serve as Delaware Trustee if it meets the applicable
requirements.
SECTION V.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 Institutional Trustee has its principal place of
business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Institutional Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no
application.
(c The initial Delaware Trustee shall be:
First Chicago Delaware Inc.
300 King Street
Wilmington, DE 19801
SECTION V.3 INSTITUTIONAL TRUSTEE; ELIGIBILITY.
(a There shall at all times be one Trustee which shall
act as Institutional Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture
Act, 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
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
750 million U.S. dollars ($750,000,000), 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 Institutional Trustee shall cease
to be eligible to so act under Section 5.3(a), the Institutional
Trustee shall immediately resign in the manner and with the
effect set forth in Section 5.6(c).
(c If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of 310(b) of the
Trust Indenture Act, the Institutional Trustee and the Holder of
the Common Securities (as if it were the obligor referred to in
310(b) of the Trust Indenture Act) shall in all respects comply
with the provisions of 310(b) of the Trust Indenture Act.
(d The Guarantee and the Indenture shall be deemed to be
specifically described in this Declaration and the Indenture for
purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
(e The initial Institutional Trustee shall be:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services Division
SECTION V.4 CERTAIN QUALIFICATIONS OF REGULAR TRUSTEES AND
DELAWARE TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the
Institutional 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 V.5 REGULAR TRUSTEES.
The initial Regular Trustees shall be:
Nancy Casablanca
Ronald Heller
Patricia Nachtigal
(a Except as expressly set forth in this Declaration and
except if a meeting of the Regular Trustees is called with
respect to any matter over which the Regular Trustees have power
to act, any power of the Regular Trustees may be exercised by, or
with the consent of, any one such Regular Trustee.
(b Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act or
applicable law, any Regular Trustee is authorized to execute on
behalf of the Trust any documents which the Regular Trustees have
the power and authority to cause the Trust to execute pursuant to
Section 3.6; and
(c a 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 purposes of signing any
documents that the Regular Trustees have power and authority to
cause the Trust to execute pursuant to Section 3.6.
SECTION V.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
Common Securities voting as a class at a meeting of the
Holders of the Common Securities.
(b (i The Trustee that acts as Institutional Trustee
shall not be removed in accordance with Section 5.6(a) until
a successor Institutional Trustee possessing the
qualifications to act as Institutional Trustee under
Sections 5.2 and 5.3 (a "Successor Institutional Trustee")
has been appointed and has accepted such appointment by
written instrument executed by such Successor Institutional
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
such Trustee's successor shall have been appointed or until such
Trustee's death, bankruptcy, dissolution, termination, 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 Institutional Trustee shall be effective:
(A until a Successor Institutional Trustee has
been appointed and has accepted such appointment by
instrument executed by such Successor Institutional
Trustee and delivered to the Trust, the Sponsor and
the resigning Institutional 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 Common Securities shall use all
reasonable efforts to promptly appoint a Successor Delaware
Trustee or Successor Institutional Trustee, as the case may be,
if the Institutional Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.6.
(e If no Successor Institutional 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 Institutional Trustee or Delaware
Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Institutional 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 Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(f No Institutional Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor
Institutional Trustee or Successor Delaware Trustee, as the case
may be.
SECTION V.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 the Regular Trustees or, if there are more than
two Regular Trustees, 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 V.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, dissolve or
terminate the Trust or terminate this Declaration. Whenever a
vacancy among the Regular Trustees shall occur, until such
vacancy is filled by the appointment of a 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 V.9 MEETINGS.
If there is more than one Regular Trustee, 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
(i) 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 (ii) without a meeting by the unanimous written consent of the
Regular Trustees. In the event there is only one Regular Trustee,
any and all action of such Regular Trustee shall be evidenced by
a written consent of such Regular Trustee.
SECTION V.10 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; 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.
SECTION V.11 MERGER, CONVERSION. CONSOLIDATION OR SUCCESSION
TO BUSINESS.
Any corporation into which the Institutional Trustee or the
Delaware Trustee, as the case may be, may be merged or converted
or with which either may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Institutional Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the
Institutional Trustee or the Delaware Trustee, as the case may
be, shall be the successor of the Institutional Trustee or the
Delaware Trustee, as the case may be, hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE VI
THE SECURITIES
SECTION VI.1 DESIGNATION AND NUMBER.
(a Capital Securities. Capital Securities, with an
aggregate liquidation amount with respect to the assets of the
Trust of $402,500,000 and a liquidation amount with respect to
the assets of the Trust of $25 per capital security will be
issued by the Trust. The Capital Security Certificates evidencing
the Capital Securities shall be substantially in the form of
Exhibit A-1 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by applicable
law or the rules of any stock exchange on which the Capital
Securities are listed or to conform to ordinary usage, custom or
practice.
(b Common Securities. Common Securities with an
aggregate liquidation amount with respect to the assets of the
Trust of $12,448,475 and a liquidation amount with respect to the
assets of the Trust of $25 per common security will be issued by
the Trust. The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by applicable law or to
conform to ordinary usage, custom or practice.
SECTION VI.2 DISTRIBUTIONS.
(a Distributions payable on each Security will be fixed
initially at a rate per annum of 6.22% (the "Coupon Rate") of the
stated liquidation amount of $25 per Security until May 15, 2001,
and at the Reset Rate thereafter, such rates being the rates of
interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears for more than one
quarter will accumulate and compound quarterly at the rate of
6.22% until May 15, 2001, and at the Reset Rate thereafter (to
the extent permitted by applicable law). The term "Distributions"
as used herein includes such cash distributions and any such
accumulated distribution that are payable unless otherwise
stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the
Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions payable
for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year consisting of
twelve 30-day months, and for any period shorter than a full
quarterly Distribution period for which Distributions are
computed, Distributions will be computed on the basis of the
actual number of days elapsed per 30-day month.
(b Distributions on the Securities will be cumulative,
will accrue from March 23, 1998, and will be payable quarterly in
arrears, on February 16, May 16, August 16 and November 16 of
each year, commencing on May 16, 1998, except as otherwise
described below. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period
not extending, in the aggregate, beyond the maturity date of the
Debentures (each an "Extension Period"). During such Extension
Period no interest shall be due and payable on the Debentures. As
a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will
continue to accumulate at the rate of 6.22% until May 15, 2001,
and at the Reset Rate thereafter, compounded quarterly during any
such Extension Period (to the extent permitted by applicable
law). Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period. Upon
the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new
Extension Period; provided that such Extension Period together
with all such previous and further extensions thereof may not
exceed beyond the maturity date of the Debentures.
(c Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the
Trust at the close of business on the Business Day immediately
preceding each of the relevant payment dates on the Securities.
Subject to any applicable laws and regulations and the provisions
of the Declaration, each such payment in respect of the Capital
Securities will be made as described under the heading
"Description of the Capital Securities -- Book Entry Only
Issuance -The Depository Trust Company" in the Prospectus
Supplement dated March 17, 1998 to the Prospectus dated March 17,
1998 (collectively, the "Prospectus") of the Trust relating to
the Registration Statement on Form S-3 (file no. 333-38367) of
the Sponsor and the Trust. The relevant record dates for the
Common Securities shall be the same record date as for the
Capital Securities. If the Capital Securities shall not continue
to remain in book-entry only form or are not in book-entry only
form at issuance, the relevant record dates for the Capital
Securities, shall conform to the rules of any securities exchange
on which the securities are listed and, if none, as shall be
selected by the Regular Trustees, which dates shall be at least
more than one, but less than 60 Business Days before the
relevant payment dates, which payment dates correspond to the
interest payment dates on the Debentures. Distributions payable
on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Debenture Issuer
having failed to make a payment under the Debentures, will cease
to be payable to the Person in whose name such Securities are
registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name
such Securities are registered on the special record date or
other specified date determined in accordance with the Indenture.
If any date on which Distributions are payable on the Securities
is not a Business Day, then payment of the Distribution payable
on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date. So long as the
Holder of any Capital Securities is the Collateral Agent, the
payment of Distributions on such Capital Securities held by the
Collateral Agent will be made at such place and to such account
as may be designated by the Collateral Agent.
(d The Coupon Rate on the Securities (as well as the
interest rate on the Debentures) will be reset on the third
Business Day immediately preceding the Purchase Contract
Settlement Date to the Reset Rate (which Reset Rate will be in
effect on and after the Purchase Contract Settlement Date). On
the Reset Announcement Date, the Reset Spread and the Two-Year
Benchmark Treasury to be used to determine the Reset Rate will be
announced by the Sponsor. On the Business Day immediately
following the Reset Announcement Date, the Holders of Securities
will be notified of such Reset Spread and Two-Year Benchmark
Treasury by the Sponsor. Such notice shall be sufficiently given
to Holders of Securities if published in an Authorized Newspaper.
(e Not later than seven calendar days nor more than 15
calendar days prior to the Reset Announcement Date, the Sponsor
will notify DTC or its nominee (or any successor Clearing Agency
or its nominee) by first-class mail, postage prepaid, to notify
the Capital Security Beneficial Owners or Clearing Agency
Participants holding Capital Securities, Income PRIDES or Growth
PRIDES, of such Reset Announcement Date and the procedures to be
followed by such Holders of Income PRIDES who intend to settle
their obligation under the Purchase Contract with separate cash.
(f In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder,
such property shall be distributed Pro Rata (as defined in
Section 6.10 of this Agreement) among the Holders of the
Securities.
SECTION VI.3 LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
In the event of any voluntary or involuntary dissolution of
the Trust (unless a Tax Event Redemption has occurred), the
Holders of the Securities on the date of the dissolution will be
entitled to receive out of the assets of the Trust, after
satisfaction of liabilities to creditors, Debentures in an
aggregate principal amount equal to the aggregate stated
liquidation amount of such Securities, with an interest rate
equal to the rate of 6.22%, if on or prior to May 15, 2001, and
the Reset Rate thereafter, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid
Distributions on such Securities and which shall be distributed
on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities (such amount being a "Liquidation
Distribution").
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient
assets available to pay in full the aggregate Liquidation
Distribution, then, except as otherwise provided in Section 6.11
hereof, the amounts payable directly by the Trust on the
Securities shall be paid on a Pro Rata basis.
SECTION VI.4 REDEMPTION AND DISTRIBUTION.
(a) Upon the redemption of the Debentures in whole (but
not in part), at maturity, the proceeds from such redemption
shall, after satisfaction of liabilities to creditors, be
simultaneously applied to redeem Securities (on a Pro Rata basis)
having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed at a redemption
price of $25 per Security plus an amount equal to accrued and
unpaid Distributions thereon at the date of the repayment,
payable in cash.
(b) If an Investment Company Event shall occur and be
continuing the Regular Trustees shall dissolve the Trust and,
after satisfaction of liabilities to creditors, cause Debentures
held by the Institutional Trustee, having an aggregate principal
amount equal to the aggregate stated liquidation amount of, with
an interest rate the rate of 6.22%, if on or prior to May 15,
2001, and the Reset Rate thereafter, and accrued and unpaid
interest equal to accrued and unpaid Distributions on, and having
the same record date for payment as the Securities, to be
distributed to the Holders of the Securities in liquidation of
such Holders' interests in the Trust on a Pro Rata basis, within
90 days following the occurrence of such Investment Company Event
(the "90 Day Period"); provided, however, that, if at the time
there is available to the Trust the opportunity to eliminate,
within the 90 Day Period, the Investment Company Event by taking
some Ministerial Action, the Regular Trustees will pursue such
Ministerial Action in lieu of dissolution.
(c) If a Tax Event shall occur and be continuing, the
Debentures are, at the option of the Debenture Issuer, redeemable
pursuant to a Tax Event Redemption. If the Debenture Issuer
redeems the Debentures upon the occurrence and continuance of a
Tax Event, the proceeds from such redemption shall simultaneously
be applied by the Institutional Trustee to redeem the Securities
(on a Pro Rata basis) having an aggregate stated liquidation
amount equal to the aggregate principal amount of the Debentures
so redeemed at the Redemption Price. If, following the
occurrence of a Tax Event, the Debenture Issuer exercises its
option to redeem the Debentures prior to May 15, 2001, the
Debenture Issuer shall appoint the Quotation Agent to assemble
the Treasury Portfolio in consultation with the Company. The
Institutional Trustee will distribute, to the record Holder of
the Securities the Redemption Price payable in liquidation of
such Holder's interests in the Trust.
On and from the date fixed by the Regular Trustees for a Tax
Event Redemption or any distribution of Debentures and
dissolution of the Trust: (i) the Securities will no longer be
deemed to be outstanding and (ii) DTC or its nominee (or any
successor Clearing Agency or its nominee) or the record Holder of
the Capital Securities, will receive a registered global
certificate or certificates representing the Debentures to be
delivered upon such distribution and any certificates
representing Securities, except for certificates representing
Capital Securities held by DTC or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent
beneficial interests in the Debentures having an aggregate
principal amount equal to the aggregate stated liquidation amount
of $25, with an interest rate of 6.22% if on or prior to May 15,
2001, and at the Reset Rate thereafter, and accrued and unpaid
interest equal to accrued and unpaid Distributions on such
Securities until such certificates are presented to the Debenture
Issuer or its agent for transfer or reissue.
SECTION VI.5 REDEMPTION OR DISTRIBUTION PROCEDURES.
(a) Notice of any redemption (other than in connection
with the maturity of the Debentures) of, or notice of
distribution of Debentures in exchange for, the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by
mail to each Holder of Securities to be redeemed or exchanged not
fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a
redemption, will be the Tax Event Redemption Date. For purposes
of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 6.5(a),
a Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail, postage
prepaid, to Holders of Securities. Each Redemption/Distribution
Notice shall be addressed to the Holders of Securities at the
address of each such Holder appearing in the books and records of
the Trust. No defect in the Redemption/Distribution Notice or in
the mailing of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange proceedings
with respect to any other Holder.
(b) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued
if the Debentures are redeemed as set out in this Section 6.5(a)
(such notice will be irrevocable), then (A) while the Capital
Securities are in book-entry only form, with respect to the
Capital Securities, by 12:00 noon, New York City time, on the
redemption date, provided that the Debenture Issuer has paid the
Institutional Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, the
Institutional Trustee will deposit irrevocably with DTC or its
nominee (or any successor Clearing Agency or its nominee) funds
sufficient to pay the applicable Redemption Price with respect to
the Capital Securities and will give DTC irrevocable instructions
and authority to pay the Redemption Price to the Holders of the
Capital Securities so called for redemption, and (B) with respect
to Capital Securities issued in definitive form and Common
Securities, provided that the Debenture Issuer has paid the
Institutional Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant Redemption Price to
the Holders of such Securities by check mailed to the address of
the relevant Holder appearing on the books and records of the
Trust. Notwithstanding the foregoing, so long as the Holder of
any Capital Securities is the Collateral Agent or the Purchase
Contract Agent, the payment of the Redemption Price in respect of
such Capital Securities held by the Collateral Agent or the
Purchase Contract Agent shall be made no later than 12:00 noon,
New York City time, on the Tax Event Redemption Date by check or
wire transfer in immediately available funds at such place and to
such account as may be designated by the Collateral Agent or the
Purchase Contract Agent. If a Redemption/Distribution Notice
shall have been given and funds deposited as required, if
applicable, then immediately prior to the close of business on
the date of such deposit, or on the redemption date, as
applicable, distributions will cease to accrue on the Securities
so redeemed and all rights of Holders of such Securities so
called for redemption will cease, except the right of the Holders
of such Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Regular Trustees
nor the Trust shall be required to register or cause to be
registered the transfer of any Securities that have been so
called for redemption. If any date fixed for redemption of
Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding
day that is a Business Day (without any interest or other payment
in respect of any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for repayment. If
payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the
Institutional Trustee or by the Sponsor as guarantor pursuant to
the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue from the original redemption
date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for repayment for
purposes of calculating the Redemption Price.
(c) Redemption/Distribution Notices shall be sent by the
Trust to (A) in respect of the Capital Securities, DTC or its
nominee (or any successor Clearing Agency or its nominee) if the
Global Certificates have been issued or, if Definitive Capital
Security Certificates have been issued, to the Holders thereof,
and (B) in respect of the Common Securities, to the Holder
thereof.
(d) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities
laws) the Sponsor or any of its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by
tender, in the open market or by private agreement.
SECTION VI.6 REPAYMENT AT OPTION OF HOLDERS.
(a) If a Failed Remarketing (as described in Section
5.4(b) of the Purchase Contract Agreement and incorporated herein
by reference) has occurred, each holder of Securities who holds
such Securities on the day immediately following the Purchase
Contract Settlement Date, shall have the right on the Business
Day immediately following May 16, 2001 to require the Trust to
distribute their pro rata share of the Debentures to the Exchange
Agent and to require the Exchange Agent to put such Debentures to
the Company on behalf of such holders on June 1, 2001, upon at
least three Business Days' prior notice (the "Put Option Exercise
Date"), at a repayment price of $25 per Security plus an amount
equal to the accrued and unpaid Distributions (including deferred
distributions if any) thereon to the date of payment (the "Put
Option Repayment Price"). Pursuant to such Put Option.
(b) The Exchange Agent shall obtain funds to pay the Put
Option Repayment Price of Securities being repaid under the Put
Option through presentation by it to the Debenture Issuer of
Debentures in an aggregate principal amount equal to the
aggregate stated liquidation amount of such Securities for
repayment on the Put Option Exercise Date at the Debenture
Repayment Price.
(c) In order for the Securities to be repaid on the Put
Option Exercise Date, the Trust must receive on or prior to 4:00
p.m. on the third Business Day immediately preceding the Put
Option Exercise Date, at the Corporate Trust Office of the
Institutional Trustee (who will in turn notify the Exchange
Agent), the Securities to be repaid with the form entitled
"Option to Elect Repayment" on the reverse thereof or otherwise
accompanying such Security duly completed. Any such notice
received by the Trust shall be irrevocable. All questions as to
the validity, eligibility (including time of receipt) and
acceptance of the Securities for repayment shall be determined by
the Trust, whose determination shall be final and binding.
(d) Payment of the Put Option Repayment Price to Holders
of Securities shall be made at the Corporate Trust Office of the
Exchange Agent, provided that the Debenture Issuer has paid the
Exchange Agent a sufficient amount of cash in connection with the
related repayment of the Debenture no later than 1:00 p.m., New
York City time, on the Put Option Exercise Date by check or wire
transfer in immediately available funds at such place and to such
account as may be designated by such Holders. If the Exchange
Agent holds immediately available funds sufficient to pay the Put
Option Repayment Price of such Securities, then, immediately
prior to the close of business on the Put Option Exercise Date,
such Securities will cease to be outstanding and distributions
thereon will cease to accrue, whether or not Securities are
delivered to the Institutional Trustee, and all other rights of
the Holder in respect of the Securities, including the Holder's
right to require the Trust to repay such Securities, shall
terminate and lapse (other than the right to receive the Put
Option Repayment Price but without interest on such Put Option
Repayment Price). Neither the Regular Trustees nor the Trust
shall be required to register or cause to be registered the
transfer of any Securities for which repayment has been elected.
If payment of the Put Option Repayment Price in respect of
Securities is (i) improperly withheld or refused and not paid
either by the Exchange Agent or by the Sponsor as guarantor
pursuant to the Securities Guarantee, or (ii) not paid by the
Exchange Agent as the result of an Event of Default with respect
to the Debentures presented for repayment as described in Section
6.6(b), Distributions on such Securities will continue to accrue,
from the original Put Option Exercise Date to the actual date of
payment, in which case the actual payment date will be considered
the Put Option Exercise Date for purposes of calculating the Put
Option Repayment Price.
(e) The Debenture Issuer will request, not later than
seven nor more than 15 calendar days prior to May 16, 2001 (the
date on which some or all of the Capital Securities could be
remarketed in the manner described in Section 5.4(b) of the
Purchase Contract Agreement and incorporated herein by reference)
that DTC notify the Capital Securities Beneficial Owner as well
as the Income PRIDES and Growth PRIDES holders of such
remarketing and of the procedures that must be followed if a
Capital Securities Beneficial Owner wishes to exercise such
holder's rights with respect to the Put Option.
SECTION VI.7 VOTING RIGHTS - CAPITAL SECURITIES.
(a) Except as provided under Sections 6.7(b) and 6.8 and
as otherwise required by law and the Declaration, the Holders of
the Capital Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a Majority in liquidation amount of the
Capital Securities, voting separately as a class may direct the
time, method, and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or the exercise of
any trust or power conferred upon the Institutional Trustee under
the Declaration, including (i) directing the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or exercising any trust or power conferred
on the Debenture Trustee with respect to the Debentures, (ii)
waiving any past default and its consequences that is waivable
under the Indenture, (iii) exercising any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable, or (iv) consenting to any amendment,
modification or termination of the Indenture or the Debentures
where such consent shall be required, provided, however, that,
where a consent under the Indenture would require the consent or
act of the Holders of greater than a Super Majority, the
Institutional Trustee may only give such consent or take such
action at the written direction of the Holders of at least the
proportion in liquidation amount of the Capital Securities which
the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding. The Institutional Trustee
shall not revoke any action previously authorized or approved by
a vote of the Holders of the Capital Securities. Other than with
respect to directing the time, method and place of conducting any
remedy available to the Institutional Trustee or the Debenture
Trustee as set forth above, the Institutional Trustee shall not
take any action in accordance with the directions of the Holders
of the Capital Securities under this paragraph unless the
Institutional Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income
tax the Trust will not be classified as other than a grantor
trust on account of such action. If the Institutional Trustee
fails to enforce its rights under the Debentures after a Holder
of Capital Securities has made a written request, such Holder of
Capital Securities may, to the fullest extent permitted by
applicable law, institute a legal proceeding directly against the
Debenture Issuer to enforce the Institutional Trustee's rights
under the Debentures without first instituting a legal proceeding
against the Institutional Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay interest or principal on
the Debentures on the date such interest or principal is
otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of Capital Securities may
directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Debentures
having a principal amount equal to the aggregate liquidation
amount of the Capital Securities of such Holder on or after the
respective due date specified in the Debentures. Except as
provided in the preceding sentence, the Holders of Capital
Securities shall not exercise directly any other remedy available
to the holders of the Debentures.
Any approval or direction of Holders of Capital Securities
may be given at a separate meeting of Holders of Capital
Securities convened for such purpose, at a meeting of all of the
Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting
at which Holders of Capital Securities are entitled to vote, or
of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of
Capital Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Capital Securities
will be required for the Trust to repay and cancel Capital
Securities or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities. Notwithstanding that
Holders of Capital Securities are entitled to vote or consent
under any of the circumstances described above, any of the
Capital Securities that are owned by the Sponsor or any Affiliate
of the Sponsor shall not be entitled to vote or consent and
shall, for purposes of such vote or consent, be treated as if
they were not outstanding.
SECTION VI.8 VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under Sections 6.8(b) and (c) and
Section 6.9 and as otherwise required by law and the Declaration,
the Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V hereof, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of
Trustees.
(c) Subject to Section 2.6 hereof and only after any Event
of Default with respect to the Capital Securities has been cured,
waived, or otherwise eliminated and subject to the requirements
of the second to last sentence of this paragraph, the Holders of
a Majority in liquidation amount of the Common Securities, voting
separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred
upon the Institutional Trustee under the Declaration, including
(i) directing the time, method, and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or
exercising any trust or power conferred on the Debenture Trustee
with respect to the Debentures, (ii) waive any past default and
its consequences that is waivable under the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Debentures shall be due and payable,
provided that, where a consent or action under the Indenture
would require the consent or act of the Holders of a Super
Majority, the Institutional Trustee may only give such consent or
take such action at the written direction of the Holders of at
least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
Pursuant to this Section 6.8(c), the Institutional Trustee shall
not revoke any action previously authorized or approved by a vote
of the Holders of the Capital Securities. Other than with respect
to directing the time, method and place of conducting any remedy
available to the Institutional Trustee or the Debenture Trustee
as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the
Common Securities under this paragraph unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that
for United States federal income tax purposes the Trust will not
be classified as other than a grantor trust on account of such
action. If the Institutional Trustee fails to enforce its rights
under the Declaration, any Holder of Common Securities may
institute a legal proceeding directly against any Person to
enforce the Institutional Trustee's rights under the Declaration,
without first instituting a legal proceeding against the
Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities
may be given at a separate meeting of Holders of Common
Securities convened for such purpose, at a meeting of all of the
Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting
at which Holders of Common Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders
is to be taken, to be mailed to each Holder of record of Common
Securities. Each such notice will include a statement setting
forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common
Securities or to distribute the Debentures in accordance with the
Declaration and the terms of the Securities.
SECTION VI.9 AMENDMENTS TO DECLARATION AND INDENTURE.
(a) In addition to any requirements under Section 11.1
hereof, if any proposed amendment to the Declaration provides
for, or the Regular Trustees otherwise propose to effect, (i) any
action that would materially adversely affect the powers,
preferences or special rights of the Securities, whether by way
of amendment to the Declaration or otherwise, or (ii) the
dissolution of the Trust, other than as described in Section 7.1
or Section 3.14 hereof, then the Holders of outstanding
Securities as a class will be entitled to vote on such amendment
or proposal (but not on any other amendment or proposal) and such
amendment or proposal shall not be effective except with the
approval of the Holders of at least a Majority in liquidation
amount of the Securities, voting together as a single class;
provided, however, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Capital
Securities or only the Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of
Securities.
(b) In the event the consent of the Institutional Trustee
as the holder of the Debentures is required under the Indenture
with respect to any amendment, modification or termination on the
Indenture or the Debentures, the Institutional Trustee shall
request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination and
shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of
the Securities voting together as a single class; provided,
however, that where a consent under the Indenture would require a
Super Majority, the Institutional Trustee may only give such
consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the
relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding; provided, further, that the
Institutional Trustee shall not take any action in accordance
with the directions of the Holders of the Securities under this
Section 6.9(b) unless (i) the Institutional Trustee has obtained
an opinion of tax counsel to the effect that for United States
federal income tax purposes, the Trust will not be classified as
other than a grantor trust on account of such action or (ii) such
action would not reduce or otherwise adversely affect powers of
the Institutional Trustee or cause the Trust to be deemed an
"investment company" which is required to be registered under the
Investment Company Act of 1940.
SECTION VI.10 REFERENCE TO PRO RATA.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata
to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Securities
outstanding unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which case
any funds available to make such payment shall be paid first to
each Holder of the Capital Securities pro rata according to the
aggregate liquidation amount of Capital Securities held by the
relevant Holder relative to the aggregate liquidation amount of
all Capital Securities outstanding, and only after satisfaction
of all amounts owed to the Holders of the Capital Securities, to
each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate liquidation amount of
all Common Securities outstanding.
SECTION VI.11 RANKING.
The Capital Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities except that,
where an Event of Default occurs and is continuing under the
Indenture in respect of the Debentures held by the Institutional
Trustee, the rights of Holders of the Common Securities to
payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Capital Securities.
SECTION VI.12 ACCEPTANCE OF SECURITIES GUARANTEE AND
INDENTURE.
Each Holder of Capital Securities and Common Securities by
the acceptance thereof, agrees to the provisions of the Indenture
and the Guarantee, respectively.
SECTION VI.13 NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive
rights to subscribe for any additional securities.
SECTION VI.14 MISCELLANEOUS.
(a) The Sponsor will provide a copy of the
Declaration, the Guarantee and the Indenture to a Holder without
charge on written request to the Sponsor at its principal place
of business.
(b) The Trust shall issue no securities or other
interests in the assets of the Trust other than the Capital
Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of
the Trust by a Regular Trustee. Such signature shall be the
manual or facsimile signature of any present or any future
Regular Trustee. In case any Regular Trustee 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 Certificate, 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.
(d) 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.
(e) 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.
Every Person, by virtue of having become a Holder or a
Capital 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.
SECTION VI.15 PAYING AGENT.
In the event that the Capital Securities are not in
book-entry only form, the Trust shall maintain in the Borough of
Manhattan, City of New York, State of New York, an office or
agency where the Capital Securities may be presented for payment
("Paying Agent"), and any such Paying Agent shall comply with
Section 317(b) of the Trust Indenture Act. The Trust may appoint
the Paying Agent and may appoint one or more additional paying
agents in such other locations as it shall determine. The term
"Paying Agent" includes any additional paying agent. The Trust
may change any Paying Agent without prior notice to any Holder.
The Trust shall notify the Institutional Trustee of the name and
address of any Paying Agent not a party to this Declaration. If
the Trust fails to appoint or maintain another entity as Paying
Agent, the Institutional Trustee shall act as such. The Trust or
any of its Affiliates (including the Sponsor) may act as Paying
Agent. The Bank of New York shall initially act as Paying Agent
for the Capital Securities and the Common Securities.
ARTICLE VII
TERMINATION OF TRUST
SECTION VII.1 TERMINATION OF TRUST.
(a) The Trust shall dissolve:
(i) upon a Termination Event;
(ii) upon the filing of a certificate of dissolution
or its equivalent with respect to the Sponsor; or the
revocation of 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 Common Securities, the
Sponsor or the Trust;
(iv)upon the occurrence and continuation of an
Investment Company Event pursuant to which the Trust shall
have been dissolved in accordance with the terms of the
Securities and all of the Debentures endorsed thereon shall
have been distributed to the Holders of Securities in
exchange for all of the Securities;
(v) when all 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; or
(vi)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 7.1(a) or a dissolution pursuant to
Section 3.14 and upon completion of the winding-up of the Trust,
the Trustees shall file a certificate of cancellation with the
Secretary of State of the State of Delaware.
(c) The provisions of Section 4.4 and Article IX shall
survive the termination of the Trust.
ARTICLE VIII
TRANSFER OF INTERESTS
SECTION VIII.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 VIII, Capital Securities shall
be freely transferable.
(c) Subject to this Article VIII, the Sponsor and any
Related Party may only transfer 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 be classified for United States
federal income tax purposes as other than a grantor trust;
and
(ii) the Trust would be an Investment Company or the
transferee to be an Investment Company.
SECTION VIII.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 VIII.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 VIII.4 BOOK ENTRY INTERESTS.
The Capital Securities Certificates, on original issuance,
in addition to being issued in the form of one or more
definitive, fully registered Capital Securities Certificate (each
a "Definitive Capital Securities Certificate") will be issued in
the form of one or more, fully registered, global Capital
Security Certificates (each a "Global Certificate"), to be
delivered to DTC, the initial Clearing Agency, by, or on behalf
of, the Trust. Such Global Certificate(s) shall initially be
registered on the books and records of the Trust in the name of
Cede & Co., the nominee of DTC, and no Capital Security
Beneficial Owner will receive a definitive Capital Security
Certificate representing such Capital Security Beneficial Owner's
interests in such Global Certificate(s), except as provided in
Section 8.7. Except for the Definitive Capital Security
Certificates as specified herein and the definitive, fully
registered Capital Securities Certificates that have been issued
to the Capital Security Beneficial Owners pursuant to Section
8.7:
(a) the provisions of this Section 8.4 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
Certificate(s) and receiving approvals, votes or consents
hereunder) as the Holder of the Capital Securities and the sole
holder of the Global Certificate(s) and shall have no obligation
to the Capital Security Beneficial Owners;
(c) to the extent that the provisions of this Section 8.4
conflict with any other provisions of this Declaration, the
provisions of this Section 8.4 shall control; and
(d) the rights of the Capital Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Capital Security Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants to 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; provided, that, solely for the
purposes of determining whether the Holders of the requisite
amount of Capital Securities have voted on any matter provided
for in this Declaration, so long as Definitive Capital Security
Certificates have not been issued, the Trustees may conclusively
rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the
Clearing Agency setting forth the Capital Security Beneficial
Owners' votes or assigning the right to vote on any matter to any
other Persons either in whole or in part.
SECTION VIII.5 NOTICES TO CLEARING AGENCY.
Whenever a notice or other communication to the Capital
Security Holders is required under this Declaration, unless and
until definitive fully registered Capital Security Certificates
shall have been issued to the Capital Security Beneficial Owners
pursuant to Section 8.7 or otherwise, the Regular Trustees shall
give all such notices and communications specified herein to be
given to the Capital Security Holders to the Clearing Agency, and
shall have no notice obligations to the Capital Security
Beneficial Owners.
SECTION VIII.6 APPOINTMENT OF SUCCESSOR CLEARING AGENCY.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Capital Securities, the
Regular Trustees may, in their sole discretion, appoint a
successor Clearing Agency with respect to such Capital
Securities.
SECTION VIII.7 DEFINITIVE CAPITAL SECURITY CERTIFICATES.
If:
(a) a Clearing Agency elects to discontinue its services
as securities depositary with respect to the Capital Securities
and a successor Clearing Agency is not appointed within 90 days
after such discontinuance pursuant to Section 8.6; or
(b) the Regular Trustees elect after consultation with the
Sponsor to terminate the book entry system through the Clearing
Agency with respect to the Capital Securities, then:
(c) definitive fully registered Capital Security
Certificates shall be prepared by the Regular Trustees on behalf
of the Trust with respect to such Capital Securities; and
(d) upon surrender of the Global Certificate(s) by the
Clearing Agency, accompanied by registration instructions, the
Regular Trustees shall cause definitive fully registered Capital
Securities Certificates to be delivered to Capital 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
fully registered Capital 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 Capital Securities may be listed,
or to conform to usage.
SECTION VIII.8 MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES.
If:
(a) any mutilated Certificate 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 and
Institutional Trustee such security or indemnity as may be
required by them to keep each of them and the Trust 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 8.8, 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 IX
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR
OTHERS
SECTION IX.1 LIABILITY.
(a) Except as expressly set forth in this Declaration, the
Debentures, the Guarantee and the terms of the Securities, the
Sponsor shall not 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
assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) Under Section 5.1 of the First Supplemental Indenture,
the Debenture Issuer, in its capacity as Borrower, 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 3803(a) of the Business Trust Act, the
Holders of the Capital 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 IX.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 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 IX.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 Institutional 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 any Covered Person or any Indemnified 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 IX.4 INDEMNIFICATION.
(a)
(i) Under Section 5.1 of the First Supplemental
Indenture, the Debenture Issuer shall be required to
indemnify, to the full extent permitted by law, any Company
Indemnified Person who was or is a party or is threatened to
be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or
in the right of the Trust) by reason of the fact that he is
or was a Company Indemnified Person against expenses
(including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act
in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(ii) Under Section 5.1 of the First Supplemental
Indenture, the Debenture Issuer shall be required to
indemnify, to the full extent permitted by law, any Company
Indemnified Person who was or is a party or is threatened to
be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or
was a Company Indemnified Person against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of
the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which
such Company Indemnified Person shall have been adjudged to
be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem
proper.
(iii)Any indemnification under paragraphs (i) and (ii)
of this Section 10.4(a) (unless ordered by a court) shall be
made by the Debenture Issuer only as authorized in the
specific case upon a determination that indemnification of
the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular
Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even
if obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holders of the Trust.
(iv) Expenses (including attorneys' fees) incurred by
a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section
10.4(a) shall be paid by the Debenture Issuer in advance of
the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall
ultimately be determined that such person is not entitled
to be indemnified by the Debenture Issuer as authorized in
this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) by the Common
Security Holders of the Trust, that, based upon the facts
known to the Regular Trustees, independent legal counsel or
Common Security Holder at the time such determination is
made, such person acted in bad faith or in a manner that
such person did not believe to be in or not opposed to the
best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person
believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances
where the Regular Trustees, independent legal counsel or
Common Security Holders reasonably determine that such
person deliberately breached such person's duty to the Trust
or its Common or Capital Security Holders.
(v) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 9.4(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of shareholders or disinterested directors of the
Sponsor or Capital Security Holders of the Trust or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. All
rights to indemnification under this Section 9.4(a) shall be
deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in
such capacity at any time while this Section 9.4(a) is in
effect. Any repeal or modification of this Section 9.4(a)
shall not affect any rights or obligations then existing.
(vi) The Debenture Issuer or the Trust may purchase
and maintain insurance on behalf of any person who is or was
a Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him
against such liability under the provisions of this Section
9.4(a).
(vii) For purposes of this Section 9.4(a), references
to "the Trust" shall include, in addition to the resulting
or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or
is or was serving at the request of such constituent entity
as a director, trustee, officer, employee or agent of
another entity, shall stand in the same position under the
provisions of this Section 9.4(a) with respect to the
resulting or surviving entity as such person would have with
respect to such constituent entity if its separate existence
had continued.
(viii)The indemnification and advancement of
expenses provided by, or granted pursuant to, this Section
9.4(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of
the successors, heirs, executors and administrators of such
a person.
(b) Under Section 5.1 of the First Supplemental Indenture,
the Debenture Issuer also shall be required to indemnify the (i)
Institutional Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Institutional Trustee or the Delaware Trustee,
and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or
agents of the Institutional Trustee or the Delaware Trustee (each
of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or
expense incurred without gross negligence and, in the case of the
Institutional Trustee, pursuant to Section 3.9, negligence or bad
faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees
and expenses) of defending itself against or investigating any
claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder. The provisions of this
Section 10.4(b) shall survive the satisfaction and discharge of
this Declaration or the resignation or removal of the
Institutional Trustee or the Delaware Trustee, as the case may
be.
SECTION IX.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Delaware Trustee and
the Institutional 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, the Sponsor, the
Delaware Trustee or the Institutional 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
Institutional 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
Institutional 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 X
ACCOUNTING
SECTION X.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 X.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the
Trust 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 books of account and the records of
the Trust shall be examined by and reported upon as of the end of
each Fiscal Year of the Trust by a firm of independent certified
public accountants selected by the Regular Trustees.
(b) The Trust 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 Trust shall endeavor to
deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Trust 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 or
statement as may be required under United States federal income
tax law, and any other annual income tax returns required to be
filed by the Trust on behalf of the Trust with any state or local
taxing authority. A copy of such returns as filed will be
delivered to the Institutional Trustee promptly after filing.
SECTION X.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 in respect of the Debentures held by
the Institutional Trustee shall be made directly to the
Institutional Trustee Account and no other funds of the Trust
shall be deposited in the Institutional Trustee Account. The sole
signatories for such accounts shall be designated by the Regular
Trustees; provided, however, that the Institutional Trustee shall
designate the signatories for the Institutional Trustee Account.
SECTION X.4 WITHHOLDING.
The Trust 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 Trust 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 XI
AMENDMENTS AND MEETINGS
SECTION XI.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 the
Regular Trustees (or, if there are more than two Regular
Trustees, a majority of the Regular Trustees); and
(i) if the amendment affects the rights, powers,
duties, obligations or immunities of the Institutional
Trustee, also by the Institutional Trustee; and
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee,
also by the Delaware Trustee;
(b) no amendment shall be made:
(i) unless, in the case of any proposed amendment,
the Institutional 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 Institutional Trustee, the Institutional
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
(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 Institutional 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 materially and
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 8.1(c) and this Section 11.1 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 Common
Securities;
(f) the rights of the Holders of the 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
Common Securities; and
(g) notwithstanding Section 11.1(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;
(iv) to conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the right, preferences or privileges of the
Holders;
(v) to modify, eliminate and add to any provision of
the Declaration to such extent as may be necessary; and
(vi) cause the Trust to continue to be classified for
United States federal income tax purposes as a grantor
trust.
SECTION XI.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 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 Capital
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, the terms of the Securities or the rules of any
stock exchange on which the Capital 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 Capital
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 XII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION XII.1 REPRESENTATIONS AND WARRANTIES OF INSTITUTIONAL
TRUSTEE.
The Trustee that acts as initial Institutional Trustee
represents and warrants to the Trust and to the Sponsor at the
date of this Declaration, and each Successor Institutional
Trustee represents and warrants to the Trust and the Sponsor at
the time of the Successor Institutional Trustee's acceptance of
its appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a national banking
association with trust powers, duly organized, validly existing
and in good standing under the laws of the United States of
America, 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 Institutional Trustee satisfies the requirements
set forth in Section 5.3(a);
(c) the execution, delivery and performance by the
Institutional Trustee of the Declaration has been duly authorized
by all necessary corporate action on the part of the
Institutional Trustee. The Declaration has been duly executed and
delivered by the Institutional Trustee, and it constitutes a
legal, valid and binding obligation of the Institutional 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);
(d) the execution, delivery and performance of the
Declaration by the Institutional Trustee does not conflict with
or constitute a breach of the Articles of Organization or By-laws
of the Institutional Trustee; and
(e) 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 Institutional Trustee, of the Declaration.
SECTION XII.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 corporation, duly
organized, validly existing and in good standing under the laws
of the State of Delaware, with 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
Delaware Trustee of the Declaration has been duly authorized by
all necessary corporate action on the part of the Delaware
Trustee. The Declaration has been duly executed and delivered by
the Delaware Trustee, and it 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; and
(d) the execution, delivery and performance of the
Declaration by the Delaware Trustee does not conflict with or
constitute a breach of the Articles of Organization or By-laws of
the Delaware Trustee; and
(e) The Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of
Delaware.
ARTICLE XIII
MISCELLANEOUS
SECTION XIII.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 Holders of the
Securities):
Ingersoll-Rand Financing I
c/o Ingersoll-Rand Company
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Attn: Corporate Secretary
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware
Trustee may give notice of to the Holders of the Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, DE 19801
Attention: Corporate Trust Services
(c) if given to the Institutional Trustee, at its
Corporate Trust Office to the attention of Corporate Trust
Administration (or such other address as the Institutional
Trustee may give notice of to the Holders of the Securities):
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Attention: Corporate Trust Services
(d) if given to the Holder of the Common Securities, at
the mailing address of the Sponsor set forth below (or such other
address as the Holder of the Common Securities may give notice to
the Trust):
Ingersoll-Rand Company
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Attn: Corporate Secretary
(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 XIII.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 XIII.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 XIII.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 XIII.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 XIII.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 XIII.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 to one of such
counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single
signature page.
SECTION XIII.8 REMARKETING
(a) The Debenture Issuer will request, not later
than 15 nor more than 30 calendar days prior to the Remarketing
Date that the Clearing Agency notify the Holders of Capital
Securities and the Holders of Income PRIDES and Growth PRIDES of
the Remarketing and of the procedures that must be followed if a
Holder of Capital Securities wishes to exercise such Holder's
rights with respect to the Put Option if there is a Failed
Remarketing.
(b) Not later than 5:00 P.M., New York City time, on
the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, each Holder of the Capital Securities
may elect to have Capital Securities held by such Holder
remarketed. Under Section 5.4 of the Purchase Contract
Agreement, Holders of Income PRIDES that do not give notice of
intention to make a Cash Settlement of their related Purchase
Contract shall be deemed to have consented to the disposition of
the Capital Securities comprising a component of such Income
PRIDES. Holders of Capital Securities that are not a component
Income PRIDES shall give notice of their election to have such
Capital Securities remarketed to the Custodial Agent pursuant to
the Pledge Agreement. Any such notice shall be irrevocable after
5:00 p.m. New York City time on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date and
may not be conditioned upon the level at which the Reset Rate is
established. Promptly after 5:30 P.M., New York City time, on
such fifth Business Day, the Institutional Trustee, based on the
notices received by it prior to such time (including notices from
the Purchase Contract Agent as to Purchase Contracts for which
cash settlement has been elected), shall notify the Trust, the
Sponsor and the Remarketing Agent of the number of Capital
Securities to be tendered for purchase.
(c) If any Holder of Income PRIDES, does not give a
notice of its intention to make a Cash Settlement or gives a
notice of election to tender Capital Securities, as described in
Section 13.8(b), the Capital Securities of such Holder shall be
deemed tendered, notwithstanding any failure by such Holder to
deliver or properly deliver such Capital Securities to the
Remarketing Agent for purchase.
(d) The right of each Holder to have Capital
Securities tendered for purchase shall be limited to the extent
that (i) the Remarketing Agent conducts a remarketing pursuant to
the terms of the Remarketing Agreement, (ii) Capital Securities
tendered have not been called for redemption, (iii) the
Remarketing Agent is able to find a purchaser or purchasers for
tendered Capital Securities and (iv) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent.
(e) On the Remarketing Date, the Remarketing Agent
shall use commercially reasonable efforts to remarket at a price
equal to 100.5% of the aggregate liquidation amount thereof,
Capital Securities tendered or deemed tendered for purchase.
(f) If none of the Holders elect to have Capital
Securities held by them remarketed, the Reset Rate shall be the
rate determined by the Remarketing Agent, subject to the terms of
the Remarketing Agreement, as the rate that would have been
established had a remarketing been held on the Remarketing Date.
(g) If the Remarketing Agent has determined that it
will be able to remarket all Capital Securities, tendered or
deemed tendered prior to 4:00 P.M., New York City time, on the
Remarketing Date, the Remarketing Agent shall determine the Reset
Rate, which shall be the rate per annum (rounded to the nearest
one-thousandth (0.001) of one percent per annum) which the
Remarketing Agent determines, subject to the term of the
Remarketing Agreement, to be the lowest rate per annum that will
enable it to remarket all Capital Securities tendered or deemed
tendered for remarketing.
(h) If, by 4:00 P.M., New York City time, on the
Remarketing Date, the Remarketing Agent is unable to remarket all
Capital Securities tendered or deemed tendered for purchase, a
failed remarketing ("Failed Remarketing") shall be deemed to have
occurred and the Remarketing Agent shall so advise by telephone
the Collateral Agent, Debenture Issuer, Institutional Trustee,
Delaware Trustee and Clearing Agency.
(i) By approximately 4:30 P.M., New York City time,
on the Remarketing Date, provided that there has not been a
Failed Remarketing, the Remarketing Agent shall advise, by
telephone (i) the Collateral Agent, Debenture Issuer,
Institutional Trustee, Delaware Trustee and Clearing Agency of
the Reset Rate determined in the Remarketing and the number of
Capital Securities sold in the remarketing, (ii) each purchaser
(or the Clearing Agency Participant thereof) of the Reset Rate
and the number of Capital Securities such purchaser is to
purchase and (iii) each purchaser to give instructions to its
Clearing Agency Participant to pay the purchase price on the
Purchase Contract Settlement Date in same day funds against
delivery of the Capital Securities purchased through the
facilities of the Clearing Agency.
(j) In accordance with the Clearing Agency's normal
procedures, on the Purchase Contract Settlement Date, the
transactions described above with respect to each Capital
Security tendered for purchase and sold in the remarketing shall
be executed through the Clearing Agency, and the accounts of the
respective Clearing Agency Participants shall be debited and
credited and such Capital Securities delivered by book entry as
necessary to effect purchases and sales of such Capital
Securities. The Clearing Agency shall make payment in accordance
with its normal procedures.
(k) If any Holder selling Capital Securities in the
remarketing fails to deliver such Capital Securities, the
Clearing Agency Participant of such selling Holder and of any
other person that was to have purchased Capital Securities in the
remarketing may deliver to any such other person a number of
Capital Securities that is less than the number of Capital
Securities that otherwise was to be purchased by such person. In
such event, the number of Capital Securities to be so delivered
shall be determined by such Clearing Agency Participant, and
delivery of such lesser number of Capital Securities shall
constitute good delivery.
(l) The Remarketing Agent is not obligated to
purchase any Capital Securities that would otherwise remain
unsold in a remarketing. Neither the Trust, any Trustee, the
Sponsor nor the Remarketing Agent shall be obligated in any case
to provide funds to make payment upon tender of Capital
Securities for remarketing.
(m) The tender and settlement procedures set forth
in this Section 13.8, including provisions for payment by
purchasers of Capital Securities in the remarketing, shall be
subject to modification, notwithstanding any provision to the
contrary set forth in Article 11, to the extent required by the
Clearing Agency or if the book-entry system is no longer
available for the Capital Securities at the time of the
remarketing, to facilitate the tendering and remarketing of
Capital Securities in certificated form. In addition, the
Remarketing Agent may, notwithstanding any provision to the
contrary set forth in Article 11, modify the settlement
procedures set forth herein in order to facilitate the settlement
process.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above
written.
___________________________________
__________
Ronald G. Heller,
as Regular Trustee
___________________________________
__________
Patricia Nachtigal,
as Regular Trustee
___________________________________
__________
Nancy Casablanca,
as Regular Trustee
FIRST CHICAGO DELAWARE INC.,
as Delaware Trustee
By ________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Institutional Trustee
By ________________________________
Name:
Title:
INGERSOLL-RAND COMPANY,
as Sponsor
By _______________________________
Name:
Title:
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[IF THE Capital Security IS TO BE A GLOBAL CERTIFICATE
INSERT - This
Capital Security is a Global Certificate within the meaning of
the Declaration hereinafter referred to and is registered in the
name of The Depository Trust Company (the "Depositary") or a
nominee of the Depositary. This Capital Security is exchangeable
for Capital Securities registered in the name of a person other
than the Depositary or its nominee only in the limited
circumstances described in the Declaration and no transfer of
this Capital Security (other than a transfer of this Capital
Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in
limited circumstances.
Unless this Capital Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the Trust or its agent for registration of
transfer, exchange or payment, and any Capital Security issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.]
Certificate Number _________ Number of Capital Securities
CUSIP NO. ___________
Certificate Evidencing Capital Securities
of
Ingersoll-Rand Financing I
____% Capital Securities
(liquidation amount $25 per Capital Security)
Ingersoll-Rand Financing I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that __________ (the "Holder") is the registered
owner of__________ Capital Securities of the Trust
representing undivided beneficial ownership interests in the
assets of the Trust designated as the 6.22% Capital Securities
(liquidation amount $25 per capital security) (the "Capital
Securities"). The Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of March 23, 1998, as
the same may be amended from time to time (the "Declaration").
Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to
the benefits of the Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Guarantee and
the Indenture to a Holder without charge upon written request to
the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and
the Capital Securities as evidence of indirect beneficial
ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this
23rd day of March, 1998.
INGERSOLL-RAND FINANCING I
By: ___________________________
Name: _________________________
Title: Regular Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed
at a rate per annum of 6.22% until May 15, 2001, and at the Reset
Rate thereafter (the "Coupon Rate") of the stated liquidation
amount of $25 per Capital Security, such rate being the rate of
interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the
rate of 6.22% until May 15, 2001, and at the Reset Rate
thereafter (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made
in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available
therefor. The amount of Distributions payable for any period will
be computed for any full quarterly Distribution period on the
basis of a 360-day year consisting of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period
for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per
30-day month.
Except as otherwise described below, Distributions on the
Capital Securities will be cumulative, will accrue from the date
of original issuance and will be payable quarterly in arrears, on
February 16, May 16, August 16 and November 16 of each year,
commencing on May 16, 1998, to holders of record, if in
book-entry only form, one Business Day prior to such payment
date, which payment dates shall correspond to the interest
payment dates on the Debentures. In the event that the Capital
Securities are not in book-entry form, the Regular Trustees will
have the right to select relevant record dates, which will be
more than one Business Day but less than 60 Business Days prior
to the relevant payment dates. The Debenture Issuer has the
right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the
Debentures for a period not exceeding beyond the date of maturity
of the Debentures (each an "Extension Period") and, as a
consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon at the rate of 6.22%
until May 15, 2001, and at the Reset Rate thereafter, compounded
quarterly during any such Extension Period (to the extent
permitted by applicable law). Payments of accrued Distributions
will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of
the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture
Issuer may commence a new Extension Period; provided that such
Extension Period together with all such previous and further
extensions thereof may not exceed beyond the maturity date of the
Debenture.
The Capital Securities shall be redeemable as provided in
the Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Trust to repay $_____ stated liquidation amount of the within
Capital Security, pursuant to its terms, on the "Put Option
Exercise Date," together with distributions thereon accrued but
unpaid to the date of repayment, to the undersigned at:
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the
Declaration, a new Capital Security or Capital Securities
representing the remaining stated liquidation amount of this
Capital Security.
For this Option to Elect Repayment to be effective, the within
Capital Security with this Option to Elect Repayment duly
completed must be received by the Trust at the Corporate Trust
Office of the Institutional Trustee at The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, IL 60670-
0126, Attention: Corporate Trust Administration.
Dated: Signature:_________________________
Signature Guarantee: ______________
Note: The signature to this Option to Elect Repayment must
correspond with the name as written upon the face of the within
Capital Security in every particular without alternation or
enlargement or any change whatsoever.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(Insert assignee's social security or tax identification number)
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
agent to transfer this Capital Security Certificate on the books
of the Trust. The agent may substitute another to act for him or
her.
Date: ____________________________________
Signature: __________________________
Signature Guarantee: ________________
(Sign exactly as your name appears on the other side of this Cap
ital Security Certificate)
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THE COMMON SECURITIES MAY ONLY BE TRANSFERRED BY THE
DEBENTURE ISSUER AND ANY RELATED PARTY TO THE DEBENTURE ISSUER OR
A RELATED PARTY OF THE DEBENTURE ISSUER; 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:
(I) THE TRUST TO BE CLASSIFIED FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES AS OTHER THAN A GRANTOR TRUST;
AND
(II) THE TRUST TO BE AN INVESTMENT COMPANY OR THE
TRANSFEREE TO BECOME AN INVESTMENT COMPANY.
Certificate Number________________ Number of Common Securities
Certificate Evidencing Common Securities
of
Ingersoll-Rand Financing I
6.22% Common Securities
(liquidation amount $25 per Common Security)
Ingersoll-Rand Financing I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that Ingersoll-Rand Company (the "Holder") is
the registered owner of 497,939 common securities of the Trust
representing undivided beneficial ownership interests in the
assets of the Trust designated as the 6.22% Common Securities
(liquidation amount $25 per common security) (the "Common
Securities"). The Common Securities are transferable on the books
and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of March 23_, 1998, as
the same may be amended from time to time (the "Declaration").
Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to
the benefits of the Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Guarantee and
the Indenture to a Holder without charge upon written request to
the Sponsor at its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by
the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and
the Common Securities as evidence of indirect beneficial
ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this 23rd day of March, 1998.
INGERSOLL-RAND FINANCING I
By: ________________________
Name: ______________________
Title: Regular Trustee
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed
at a rate per annum of 6.22% until ________, 2001, and at the
Reset Rate thereafter (the "Coupon Rate") of the stated
liquidation amount of $25 per Common Security, such rate being
the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears for more than one
quarter will bear interest thereon compounded quarterly at the
rate of 6.22% until May 15, 2001, and at the Reset Rate
thereafter (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made
in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available
therefor. The amount of Distributions payable for any period will
be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed
on the basis of the actual number of days elapsed per 30-day
month.
Except as otherwise described below, distributions on the
Common Securities will be cumulative, will accrue from the date
of original issuance and will be payable quarterly in arrears, on
February 16, May 16, August 16 and November 16, of each year,
commencing on May 16, 1998, to Holders of record one Business Day
prior to such payment dates, which payment dates shall correspond
to the interest payment dates on the Debentures. The Debenture
Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to
time on the Debentures for a period not exceeding beyond the date
of maturity of the Debentures (each an "Extension Period") and,
as a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted
by applicable law) at the rate of 6.22% until May 15, 2001, and
at the Reset Rate thereafter, compounded quarterly during any
such Extension Period. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the
Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the
payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period; provided, that such Extension
Period together with all such previous and further extensions
thereof may not exceed beyond the maturity date of the
Debentures.
The Common Securities shall be redeemable as provided in the
Declaration.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs
the Trust to repay $_____ stated liquidation amount of the within
Common Security, pursuant to its terms, on the "Put Option
Exercise Date," together with distributions thereon accrued and
unpaid to the date of repayment, to the undersigned at:
_________________________________________________
(Please print or type Name and Address of the Undersigned)
and to issue to the undersigned, pursuant to the terms of the
Declaration, a new Common Security or Common Securities
representing the remaining stated liquidation amount of this
Common Security.
For this Option to Elect Repayment to be effective, the within
Common Security with this Option to Elect Repayment duly
completed must be received by the Trust at the Corporate Trust
Office of the Institutional Trustee at The First National Bank of
Chicago, One First National Plaza, Suite 0126, Chicago, IL 60670-
0126, Attention: Corporate Trust Administration.
Dated:_______________ Signature: ________________________
Signature Guarantee: ________________
Note: The signature to this Option to Elect Repayment must
correspond with the name as written upon the face of the within
Common Security in every particular without alternation or
enlargement or any change whatsoever.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
agent to transfer this Common Security Certificate on the books
of the Trust. The agent may substitute another to act for him or
her.
Date: ____________________________________
Signature: ________________________
Signature Guarantee: _______________
(Sign exactly as your name appears on the other side of this Com
mon Security Certificate)
EXHIBIT B
SPECIMEN OF DEBENTURE
EXHIBIT C
UNDERWRITING AGREEMENT