<Page>
AMENDED AND RESTATED DECLARATION
OF TRUST
PLC CAPITAL TRUST III
Dated as of August 22, 2001
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TABLE OF CONTENTS
<Table>
<Caption>
Page
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ARTICLE I. INTERPRETATION AND DEFINITIONS
SECTION 1.1. Definitions.........................................................................................1
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application....................................................................7
SECTION 2.2. Lists of Holders of Securities......................................................................8
SECTION 2.3. Reports by the Institutional Trustee................................................................8
SECTION 2.4. Periodic Reports to Institutional Trustee...........................................................8
SECTION 2.5. Evidence of Compliance with Conditions Precedent....................................................9
SECTION 2.6. Events of Default; Waiver...........................................................................9
SECTION 2.7. Event of Default; Notice...........................................................................11
ARTICLE III. ORGANIZATION
SECTION 3.1. Name...............................................................................................11
SECTION 3.2. Office.............................................................................................11
SECTION 3.3. Purpose............................................................................................11
SECTION 3.4. Authority..........................................................................................12
SECTION 3.5. Title to Property of the Trust.....................................................................12
SECTION 3.6. Powers and Duties of the Regular Trustees..........................................................12
SECTION 3.7. Prohibition of Actions by the Trust and the Trustees...............................................15
SECTION 3.8. Powers and Duties of the Institutional Trustee.....................................................16
SECTION 3.9. Certain Duties and Responsibilities of the Institutional Trustee...................................18
SECTION 3.10. Certain Rights of Institutional Trustee...........................................................19
SECTION 3.11. Delaware Trustee..................................................................................22
SECTION 3.12. Execution of Documents............................................................................22
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities............................................22
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. Responsibilities of the Sponsor....................................................................25
ARTICLE V. TRUSTEES
SECTION 5.1. Number of Trustees.................................................................................25
SECTION 5.2. Delaware Trustee...................................................................................26
SECTION 5.3. Institutional Trustee; Eligibility.................................................................26
SECTION 5.4. Certain Qualifications of Regular Trustees and Delaware Trustee Generally..........................27
SECTION 5.5. Regular Trustees...................................................................................27
SECTION 5.6. Appointment, Removal and Resignation of Trustees...................................................28
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SECTION 5.7. Vacancies Among Trustees...........................................................................29
SECTION 5.8. Effect of Vacancies................................................................................29
SECTION 5.9. Meetings...........................................................................................29
SECTION 5.10. Delegation of Power...............................................................................30
SECTION 5.11. Merger, Conversion, Consolidation or Succession to Business.......................................30
ARTICLE VI. DISTRIBUTIONS
SECTION 6.1. Distributions......................................................................................31
ARTICLE VII. ISSUANCE OF SECURITIES
SECTION 7.1. General Provisions Regarding Securities............................................................31
SECTION 7.2. Paying Agent.......................................................................................32
ARTICLE VIII. TERMINATION OF TRUST
SECTION 8.1. Termination of Trust...............................................................................32
ARTICLE IX. TRANSFER OF INTERESTS
SECTION 9.1. Transfer of Securities.............................................................................33
SECTION 9.2. Transfer of Certificates...........................................................................34
SECTION 9.3. Deemed Security Holders............................................................................34
SECTION 9.4. Book Entry Interests...............................................................................34
SECTION 9.5. Notices to Clearing Agency.........................................................................35
SECTION 9.6. Appointment of Successor Clearing Agency...........................................................35
SECTION 9.7. Definitive Preferred Security Certificates.........................................................35
SECTION 9.8. Mutilated, Destroyed, Lost or Stolen Certificates..................................................36
ARTICLE X. LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. Liability.........................................................................................36
SECTION 10.2. Exculpation.......................................................................................37
SECTION 10.3. Fiduciary Duty....................................................................................37
SECTION 10.4. Indemnification...................................................................................38
SECTION 10.5. Outside Businesses................................................................................41
ARTICLE XI. ACCOUNTING
SECTION 11.1. Fiscal Year.......................................................................................42
SECTION 11.2. Certain Accounting Matters........................................................................42
SECTION 11.3. Banking...........................................................................................42
SECTION 11.4. Withholding.......................................................................................43
ARTICLE XII. AMENDMENTS AND MEETINGS
SECTION 12.1. Amendments........................................................................................43
SECTION 12.2. Meetings of the Holders of Securities; Action by Written Consent..................................45
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ARTICLE XIII. REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1. Representations and Warranties of Institutional Trustee...........................................46
SECTION 13.2. Representations and Warranties of Delaware Trustee................................................47
ARTICLE XIV. MISCELLANEOUS
SECTION 14.1. Notices...........................................................................................48
SECTION 14.2. Governing Law.....................................................................................49
SECTION 14.3. Intention of the Parties..........................................................................49
SECTION 14.4. Headings..........................................................................................49
SECTION 14.5. Successors and Assigns............................................................................49
SECTION 14.6. Partial Enforceability............................................................................49
SECTION 14.7. Counterparts......................................................................................49
</Table>
<Table>
ANNEX I TERMS OF SECURITIES
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE
EXHIBIT B SPECIMEN OF DEBENTURE
EXHIBIT C PURCHASE AGREEMENT
</Table>
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CROSS-REFERENCE TABLE*
<Table>
<Caption>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
310 (a)..................................................................... 5.3(a)
310 (c)..................................................................... Inapplicable
311 (c)..................................................................... Inapplicable
312 (a)..................................................................... 2.2(a)
312 (b)..................................................................... 2.2(b)
313......................................................................... 2.3
314 (a)..................................................................... 2.4
314 (b)..................................................................... Inapplicable
314 (c)..................................................................... 2.5
314 (d)..................................................................... Inapplicable
314 (f)..................................................................... Inapplicable
315 (a)..................................................................... 3.9(b)
315 (c)..................................................................... 3.9(a)
315 (d)..................................................................... 3.9(a)
316 (a)..................................................................... Annex I
316 (c)..................................................................... 3.6(e)
</Table>
* This Cross-Reference Table does not constitute part of the Declaration
and shall not affect the interpretation of any of its terms or
provisions.
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
PLC CAPITAL TRUST III
August 22, 2001
AMENDED AND RESTATED DECLARATION OF TRUST (this "Declaration") dated
and effective as of August 22, 2001, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (as defined herein) to be issued
pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established PLC Capital Trust III
(the "Trust"), a trust under the Delaware Business Trust Act, pursuant to a
Declaration of Trust dated as of July 1, 1997 (the "Original Declaration") and a
Certificate of Trust filed with the Secretary of State of the State of Delaware
on July 1, 1997 (the "Certificate of Trust"), 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;
WHEREAS, prior to the execution hereof, no interests in the Trust have
been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the 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 holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I.
INTERPRETATION AND DEFINITIONS
SECTION 1.1. DEFINITIONS. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time
to time;
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(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 and
all references in this Declaration to the "terms of the Securities" are
to the terms of the Securities as set forth in Annex I hereto;
(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.
"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 a day on which banking
institutions in New York, New York or Wilmington, Delaware are authorized or
required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code Section 3801 ET SEQ., as it may be amended from time to time, or
any successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
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 Preferred 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 Preferred
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" under the Purchase Agreement.
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"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" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the Common Securities Guarantee
Agreement, dated as of August 22, 2001, of the Sponsor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form, substantially in the form of Exhibit A-2, representing a Common
Security.
"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 Preferred Guarantee Trustee shall,
at any particular time, be principally administered, which office at the date of
execution of this Declaration located at
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
"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 Protective Life Corporation, a Delaware
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means The Bank of New York (as successor to AmSouth
Bank), as trustee under the Indenture until a successor is appointed thereunder,
and thereafter such successor trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture and to be held by the Institutional
Trustee, a specimen certificate for such series of Debentures being
substantially in the form of Exhibit B.
"Delaware Trustee" has the meaning set forth in Section 5.2.
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"Definitive Preferred Security Certificates" has the meaning set forth
in Section 9.4.
"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 such Person.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"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.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"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 Subordinated Indenture dated as of June 1, 1994,
from the Debenture Issuer to the Debenture Trustee, and any Subordinated
Indenture supplemental thereto pursuant to which the Debentures are to be issued
(including, without limitation, the Supplemental Indenture No. 5, dated as of
August 22, 2001 between the Debenture Issuer and the Debenture Trustee).
"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).
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"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" has the meaning set forth in Annex I hereto.
"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 of the Preferred 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 Preferred 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" has the meaning set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person; PROVIDED that any
Officers' Certificate delivered with respect to compliance with a condition or
covenant provided for in this Declaration shall include:
(a) a statement that each officer signing such certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
such certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"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.
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"Preferred Securities Guarantee" means the Preferred Securities
Guarantee Agreement, dated as of August 22, 2001, of the Sponsor in respect of
the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit A-1.
"Pricing Agreement" means the Pricing Agreement incorporated into the
Purchase Agreement for the sale and purchase of Preferred Securities.
"Purchase Agreement" means the Purchase Agreement for the offering and
sale of Preferred Securities in the form of Exhibit C.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"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.
"Responsible Officer" means, with respect to the Institutional Trustee,
any officer within the Corporate Trust Office of the Institutional Trustee,
including 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 customarily performing
functions similar to those performed by any of the above designated officers
with direct responsibility for the administration of the Trust, and also means,
with respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of that officer's knowledge of and familiarity
with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time or any
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successor legislation.
"Special Event" has the meaning set forth in Annex I hereto.
"Sponsor" means Protective Life Corporation, a Delaware corporation, or
any successor entity in a merger, consolidation or amalgamation, in its capacity
as sponsor of the Trust.
"Super Majority" has the meaning set forth in Section 2.6 (a) (ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"10% in liquidation amount of the Securities" means, except as provided
in the terms of the Preferred 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 Preferred 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 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.
"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).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue as a trustee of
the Trust 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.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and
shall, to the extent applicable, be governed by such provisions.
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(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
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of
the Trust.
SECTION 2.2. LISTS OF HOLDERS OF SECURITIES.
(a) 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 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 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 Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
SECTION 2.3. REPORTS BY THE INSTITUTIONAL TRUSTEE. Within 60 days after
May 15 of each year, the Institutional Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Institutional Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO INSTITUTIONAL TRUSTEE. Each of the
Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the
Institutional Trustee and the Holders such documents, reports and information as
required by Section 314 (if any) of the Trust Indenture Act and the compliance
certificate required by such Section 314 of the Trust Indenture Act in the form,
in the manner and at the times required thereby.
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SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each of
the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to
the 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 Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of
the Preferred Securities, waive any past Event of Default in respect of
the Preferred Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Debentures
(a "Super Majority") to be waived under the Indenture, the
Event of Default under the Declaration may only be waived by
the vote of the Holders of at least the proportion in
liquidation amount of the Preferred 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
Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded
from this Declaration and the Securities, as permitted by the Trust
Indenture Act. Upon such waiver, any such default shall cease to exist,
and any Event of Default with respect to the Preferred Securities
arising therefrom shall be deemed to have been cured, for every purpose
of this Declaration, but no such waiver shall extend to any subsequent
or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the
Holders of the Preferred Securities of an Event of Default with respect
to the Preferred Securities shall also be deemed to constitute a waiver
by the Holders of the Common Securities of any such Event of Default
with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the Holders of
the Common Securities.
(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
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Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this
Section 2.6(b), the Event of Default under the Declaration
shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority
to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section
2.6(b), the Event of Default under the Declaration may only be
waived by the vote of the Holders of at least the proportion
in aggregate liquidation amount of the Common Securities that
the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
PROVIDED FURTHER, that each Holder of Common Securities will be deemed
to have waived any such Event of Default and all Events of Default with
respect to the Common Securities and its consequences until all Events
of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated, and until such Events of Default have
been so cured, waived or otherwise eliminated, the Institutional
Trustee will be deemed with respect to the Preferred Securities to be
acting solely on behalf of the Holders of the Preferred Securities and
only the Holders of the Preferred Securities will have the right to
direct the Institutional Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in
lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture
Act and such Sections 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 written direction of the Holders of the
Preferred Securities constitutes a waiver of the corresponding Event of
Default with respect to the Preferred 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
Preferred 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 Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act
is hereby expressly excluded from this Declaration and the Securities,
as permitted by the Trust Indenture Act.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
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(a) The Institutional Trustee shall, within 90 days after a
Responsible Officer of the Institutional Trustee obtains actual
knowledge of the occurrence of an Event of Default, transmit by mail,
first class postage prepaid, to the Holders of the Securities, notices
of all defaults with respect to the Securities actually known to a
Responsible Officer of the Institutional Trustee, unless such defaults
have been cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.7 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 with respect to a
default in the payment of principal of (or premium, if any) or interest
on any of the Debentures or in the payment of any sinking fund
installment established for 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 or Event of Default under Sections 5.1
or 5.3 of the Indenture; or
(ii) any default or Event of 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 the Declaration shall have
actual knowledge.
ARTICLE III.
ORGANIZATION
SECTION 3.1. NAME. The Trust is named "PLC Capital Trust III," as such
name may be modified from time to time by the Regular Trustees following written
notice to the Holders of Securities and the filing of a certificate of amendment
under the Business Trust Act. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 3.2. OFFICE. The address of the principal office of the Trust
is 2801 Highway 280 South, Birmingham, Alabama 35223. On ten Business Days'
written notice to the Trustee and to the Holders of the Securities, the Regular
Trustees may designate another principal office.
SECTION 3.3. PURPOSE. The exclusive purposes and functions of the Trust
are (i) to issue and sell the Preferred Securities and the Common Securities
representing undivided beneficial interests in the assets of the Trust, (ii) to
use the gross proceeds from the sale of the Securities to acquire the Debentures
and (iii) to engage in only those other activities necessary or
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incidental thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the
Trust not to be classified for United States federal income tax purposes as a
grantor trust.
The Trustees, the Sponsor and the Holders of the Preferred Securities
and Common Securities (by their acceptance of such Securities) agree not to take
any position for United States federal income tax purposes which is contrary to
the classification of the Trust as a grantor trust.
SECTION 3.4. 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 3.5. 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. The Holders shall not have legal title to
any part of the assets of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
SECTION 3.6. POWERS AND DUTIES OF THE REGULAR TRUSTEES. The Regular
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a
simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Sponsor,
including any amendments thereto, pertaining to the Preferred
Securities;
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(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be
necessary or advisable in order to qualify or register all or
part of the Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Preferred
Securities for sale;
(iii) execute and file an application, prepared by
the Sponsor, to the New York Stock Exchange, Inc. or any other
national stock exchange or the Nasdaq Stock Market's National
Market for listing upon notice of issuance of any Preferred
Securities pursuant to Section 3.8;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Sponsor, relating to the registration
of the Preferred Securities under Section 12(b) of the
Exchange Act; and
(v) execute and enter into the Purchase Agreement
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of
the Preferred 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 Holders of the Preferred Securities and the Holders of
Common Securities pursuant to Section 3.8;
(d) to give the Sponsor and the Institutional Trustee prompt
written notice of the occurrence of a Special Event; provided that the
Regular Trustees shall consult with the Sponsor and the Institutional
Trustee before taking or refraining from taking any Ministerial Action
in relation to a Tax Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date to be established,
including and with respect to, for the purposes of Section 316(c) of
the Trust Indenture Act, Distributions, voting rights, redemptions and
exchanges, and to issue relevant notices to the Holders of Preferred
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;
(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
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designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the 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 Institutional Trustee
and 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 Preferred 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 as set out in this Section 3.6, including, but not limited
to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust to continue 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 does not adversely affect the interests of
the Holders;
(p) to take all action necessary to cause all applicable tax
returns and tax
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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; and
(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 or incidental to the foregoing.
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.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7. PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
(a) The Trust shall not, and the Trustees (including the
Institutional Trustee) shall not, engage in any activity other than as
required or authorized by this Declaration. In particular, the Trust
shall not and the Trustees (including the 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 as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose as set forth in Section 3.3;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(v) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Securities in
any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust
other than the Securities; or
(vii) other than as provided in this Declaration
(including, without
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limitation, Annex I), (A) direct the time, method and place
of conducting any proceeding with respect to any remedy
available to the Debenture Trustee or exercising any trust
or power conferred upon the Debenture Trustee with respect
to the Debentures, (B) waive any past default 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 where such consent shall be required unless the
Trust shall have received an opinion of nationally
recognized tax counsel to the effect that such amendment,
modification or termination will not cause more than an
insubstantial risk that for United States federal income
tax purposes the Trust will be classified as other than a
grantor trust as a result of such action.
SECTION 3.8. POWERS AND DUTIES OF THE INSTITUTIONAL TRUSTEE.
(a) The legal title to the Debentures shall be held by the
Institutional Trustee in trust for the benefit of 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 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 Preferred 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 at least equal to the
rating assigned to the Preferred Securities 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 or
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appropriate to effect the redemption of the Preferred
Securities and the Common Securities pursuant to this
Declaration (including, without limitation, Annex I) to the
extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by
the Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the
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.
(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 or the Trust Indenture Act.
(f) The Institutional Trustee shall not resign as a Trustee
unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of
Securities pursuant to the terms of the Securities; or
(ii) a Successor Institutional Trustee (as defined in
Section 5.6) 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.
(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.
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SECTION 3.9. 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 waiving 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
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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 own
account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this
Declaration 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 in writing 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 3.10. 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,
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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 reregistration 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, it being
understood that 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 not be bound to
make any investigation
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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 fully
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.
(xii) the Institutional Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it
in good faith, without negligence, and reasonably believed by
it to be authorized or within the discretion or rights or
powers conferred upon it by this Declaration;
(xiii) when the Institutional Trustee incurs expenses
or renders services in connection with an Event of Default
under the Indenture, such expenses (including the fees and
expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration
under any bankruptcy law or law relating to creditors rights
generally;
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(xiv) in no event shall the Institutional Trustee be
liable for the selection of investments or for investment
losses incurred thereon. The Institutional Trustee shall have
no liability in respect of losses incurred as a result of the
liquidation of any such investment prior to its stated
maturity or the failure of the party directing such investment
to provide timely written investment direction. The
Institutional Trustee shall have no obligation to invest or
reinvest any amounts held hereunder in the absence of such
written investment direction; and
(xv) in the event that the Institutional Trustee is
also acting as Paying Agent hereunder, the rights and
protections afforded to the Institutional Trustee pursuant to
this Article III shall also be afforded to such Paying Agent.
(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 3.11. DELAWARE TRUSTEE. Notwithstanding any other provision of
this Declaration other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Regular Trustees or the Institutional Trustee
described in this Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act and taking such actions
as are required to be taken by the Delaware Trustee under the Business Trust
Act. In the event that the Delaware Trustee is required to take any action or
perform any duty hereunder, the Delaware Trustee shall be entitled to the
benefits of Section 3.9(b)(ii) through (viii) and Section 3.10 of this
Declaration.
SECTION 3.12. EXECUTION OF DOCUMENTS. Unless otherwise determined by
the Regular Trustees, and except as otherwise required by the Business Trust
Act, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 3.6; provided that, the registration statement referred to
in Section 3.6(b)(i), including any amendments thereto, shall be signed by all
of the Regular Trustees.
SECTION 3.13. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration and the Securities shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration or the
Securities.
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SECTION 3.14. DURATION OF TRUST. The Trust, unless terminated earlier
pursuant to the provisions of Article VIII hereof, shall have existence for
fifty-five (55) years from the issuance of the Debentures.
SECTION 3.15. MERGERS.
(a) The Trust may not consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, except as
described in Sections 3.15(b) and (c).
(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:
(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 Preferred Securities
other securities having substantially the same terms
as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank with
respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly appoints a
trustee of the Successor Entity that possesses the same powers
and duties as the Institutional Trustee as the Holder of the
Debentures;
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national
securities exchange or with another organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including any
Successor Securities) in any material respect (other than with
respect to any dilution of such Holders' interests in the
Preferred Securities
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as a result of such merger, consolidation, amalgamation or
replacement);
(vi) such Successor Entity has a purpose 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) in
any material respect (other than with respect to any
dilution of the Holders' interest in the new entity);
and
(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor
the Successor Entity will be required to register as
an Investment Company under the Investment Company
Act;
(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 at least to
the extent provided by the Preferred Securities 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 4.1. SPONSOR'S PURCHASE OF COMMON SECURITIES. On the Closing
Date at the same time as the Preferred Securities are sold, the Sponsor will
purchase all of the Common Securities issued by the Trust, in an amount at least
equal to 3% of the aggregate capital of the Trust after giving effect to such
sale of Preferred Securities.
SECTION 4.2. RESPONSIBILITIES OF THE SPONSOR. In connection with the
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage
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in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by the Trust, advise the Trust of actions it must take,
and prepare for execution and filing any documents to be executed and
filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement and
Pricing Agreement providing for the sale of the Preferred Securities.
ARTICLE V.
TRUSTEES
SECTION 5.1. NUMBER OF TRUSTEES. The number of Trustees initially shall
be three (3), 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 meets the requirements of
Sections 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 Trustee may also
serve as Delaware Trustee if it meets the applicable requirements.
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SECTION 5.2. DELAWARE TRUSTEE. If required by the Business Trust Act,
one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law, provided that, if the 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:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
SECTION 5.3. INSTITUTIONAL TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as
Institutional Trustee and which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the 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 Section 310(b) of the
Trust Indenture Act, the Institutional Trustee
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and the Holder of the Common Securities (as if it were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i)
of the first provision contained in Section 310(b) of the Trust
Indenture Act.
(e) The initial Institutional Trustee shall be:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
SECTION 5.4. 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 5.5. REGULAR TRUSTEES. The initial Regular Trustees shall be:
Richard J. Bielen
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
Jerry W. DeFoor
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(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) As more specifically provided in Section 5.10, 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 which the Regular
Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.6.
SECTION 5.6. APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
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(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 (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 this Section 5.6(a) until a
successor Trustee possessing the qualifications to act as
Delaware Trustee under Sections 5.2 and 5.4 (a "Successor
Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior
or subsequent accounting) by an instrument in writing signed by such
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
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Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
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 5.7. VACANCIES AMONG TRUSTEES. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees (or, if there are more than two, a majority of the Regular
Trustees) shall be conclusive evidence of the existence of such vacancy. Any
such vacancy shall be filled with a Trustee appointed in accordance with Section
5.6.
SECTION 5.8. EFFECT OF VACANCIES. The death, resignation, retirement,
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee shall not operate to annul the Trust. Whenever a
vacancy in the number of Regular Trustees shall occur, until such vacancy is
filled by the appointment of a Regular Trustee in accordance with Section 5.6,
the Regular Trustees in office, regardless of their number, shall have all the
powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Declaration.
SECTION 5.9. 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
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24 hours before such meeting. Notices shall contain a brief statement of the
time, place and anticipated purposes of the meeting. The presence (whether in
person or by telephone) of a Regular Trustee at a meeting shall constitute a
waiver of notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the
Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees.
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 5.10. 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, including any registration statement or
amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) the Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the
doing of such things and the execution of such instruments either in
the name of the Trust or the names of the Regular Trustees or otherwise
as the Regular Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
SECTION 5.11. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person 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 Person 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 Person 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 Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI.
DISTRIBUTIONS
SECTION 6.1. DISTRIBUTIONS. Holders shall receive Distributions (as
defined herein) in accordance with the applicable terms of the relevant Holder's
Securities. Distributions shall be
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made on the Preferred Securities and the Common Securities in accordance with
the preferences set forth in their respective terms. If and to the extent
that the Debenture Issuer makes a payment of interest (including Compounded
Interest (as defined in the Indenture) and Additional Interest (as defined in
the Indenture)), premium and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment
Amount"), the Institutional Trustee shall and is directed, to the extent
funds are available for that purpose, to make a distribution (a
"Distribution") of such Payment Amount to Holders.
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ARTICLE VII.
ISSUANCE OF SECURITIES
SECTION 7.1. GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall, on behalf of the Trust, issue
one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth
in Annex I (the "Preferred Securities"), which terms are incorporated
by reference in, and made a part of, this Declaration as if
specifically set forth herein, and one class of common securities
representing undivided beneficial interests in the assets of the Trust
having such terms as are set forth in Annex I (the "Common
Securities"), which terms are incorporated by reference in, and made a
part of, this Declaration as if specifically set forth herein. The
Trust shall issue no securities or other interests in the assets of the
Trust other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by
a Regular Trustee. Such signature shall be the manual signature of any
present or any future Regular Trustee. In case any Regular Trustee of
the Trust who shall have signed any of the Securities shall cease to be
such Regular Trustee before the Certificates so signed shall be
delivered by the Trust, such Certificates nevertheless may be delivered
as though the person who signed such Certificates had not ceased to be
such Regular Trustee; and any Certificate may be signed on behalf of
the Trust by such persons who, at the actual date of execution of such
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.
(c) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly
issued, fully paid and (subject to Section 10.1) non-assessable.
(e) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of
this Declaration, shall be deemed to have expressly assented and agreed
to the terms of, and shall be bound by, this
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Declaration and the Preferred Securities Guarantee.
SECTION 7.2. PAYING AGENT. In the event that the Preferred Securities
are not in book-entry only form, the Trust shall maintain an office or agency
where the Preferred 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 such 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 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 may act as Paying Agent. The Institutional Trustee
shall initially act as Paying Agent for the Preferred Securities and the Common
Securities.
ARTICLE VIII.
TERMINATION OF TRUST
SECTION 8.1. TERMINATION OF TRUST. (a) The Trust shall dissolve in the
earlier to occur of 55 years after the issuance of the Debentures or:
(i) upon the bankruptcy of the Sponsor;
(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 consent of a Majority in liquidation
amount of the Securities affected thereby voting together as a
single class to dissolve the Trust;
(iv) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Sponsor or the Trust;
(v) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders, in each case in
accordance with the terms of the Securities;
(vi) at the election of the Sponsor (which is wholly
within its sole discretion) at any time pursuant to which the
Trust shall have been dissolved in accordance with the terms
of the Securities as set forth in Annex I and all of the
Debentures endorsed thereon shall have been distributed to the
Holders of Securities in exchange for all of the Securities;
or
(vii) before the issuance of any Securities, with the
consent of all of the
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Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding-up of
the Trust and satisfaction of all liabilities of the Trust in
accordance with the Business Trust Act, the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware and the Trust shall terminate.
(c) The provisions of Article X shall survive the termination
of the Trust.
ARTICLE IX.
TRANSFER OF INTERESTS
SECTION 9.1. TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this
Declaration and in the terms of the Securities. Any transfer or
purported transfer of any Security not made in accordance with this
Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) Subject to this Article IX, 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 not continue to be classified for
United States federal income tax purposes as a grantor trust;
and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
SECTION 9.2. TRANSFER OF CERTIFICATES. The Regular Trustees shall
provide for the registration of Certificates and of transfers of Certificates,
which will be effected without charge but only upon payment (with such indemnity
as the Regular Trustees may require) in respect of any tax or other government
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Certificate, the Regular Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall be
accompanied by a written instrument of transfer in form satisfactory to the
Regular Trustees duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer
shall be canceled by the Regular Trustees. A transferee of a Certificate shall
be entitled
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to the rights and subject to the obligations of a Holder hereunder upon the
receipt by such transferee of a Certificate. By acceptance of a Certificate,
each transferee shall be deemed to have agreed to be bound by this
Declaration.
SECTION 9.3. DEEMED SECURITY HOLDERS. The Trustees may treat the Person
in whose name any Certificate shall be registered on the books and records of
the Trust as the sole holder of such Certificate and of the Securities
represented by such Certificate for purposes of receiving Distributions and for
all other purposes whatsoever and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person, whether or
not the Trust shall have actual or other notice thereof.
SECTION 9.4. BOOK ENTRY INTERESTS. Unless otherwise specified in the
terms of the Preferred Securities, the Preferred Securities Certificates, on
original issuance, will be issued in the form of one or more fully registered,
global Preferred Security Certificates (each a "Global Certificate"), to be
delivered to DTC, the initial Clearing Agency, by, or on behalf of, the Trust.
Such Global 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
Preferred Security Beneficial Owner will receive a definitive Preferred Security
Certificate representing such Preferred Security Beneficial Owner's interests in
such Global Certificate(s), except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive
Preferred Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificate(s) and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificate(s) and shall
have no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions
of this Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants and the Clearing Agency shall receive and
transmit payments of Distributions on the Global Certificates to such
Clearing Agency Participants. DTC will make book entry transfers among
the Clearing Agency Participants.
SECTION 9.5. NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication
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to the Preferred Security Holders is required under this Declaration, unless
and until Definitive Preferred Security Certificates shall have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.7, the
Regular Trustees shall give all such notices and communications specified
herein to be given to the Preferred Security Holders to the Clearing Agency,
and shall have no notice obligations to the Preferred Security Beneficial
Owners.
SECTION 9.6. APPOINTMENT OF SUCCESSOR CLEARING AGENCY. If any Clearing
Agency elects to discontinue its services as securities depositary with respect
to the Preferred Securities, the Regular Trustees may, in their sole discretion,
appoint a successor Clearing Agency with respect to such Preferred Securities.
SECTION 9.7. DEFINITIVE PREFERRED SECURITY CERTIFICATES. If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; 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 Preferred Securities, then:
(i) Definitive Preferred Security Certificates shall
be prepared by the Regular Trustees on behalf of the Trust
with respect to such Preferred Securities; and
(ii) upon surrender of the Global Certificate(s) by
the Clearing Agency, accompanied by registration instructions,
the Regular Trustees shall cause Definitive Preferred Security
Certificates to be delivered to Preferred Security Beneficial
Owners in accordance with the instructions of the Clearing
Agency. Neither the Trustees nor the Trust shall be liable for
any delay in delivery of such instructions and each of them
may conclusively rely on and shall be protected in relying on,
said instructions of the Clearing Agency. The Definitive
Preferred Security Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends
or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule
or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Preferred Securities
may be listed, or to conform to usage.
SECTION 9.8. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if
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the Regular Trustees shall receive evidence to their satisfaction of
the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of them
harmless;
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the relevant Securities, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
ARTICLE X.
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1. LIABILITY.
(a) Except as expressly set forth in this Declaration, the
Debentures, the Preferred Securities Guarantee, the Common Securities
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) The Holder of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other than with respect
to the Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware.
SECTION 10.2. EXCULPATION.
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(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 performed
or omission made 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 ordinary negligence
in the case of the Institutional Trustee) or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as
to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount
of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
SECTION 10.3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of an
Indemnified Person otherwise existing at law or in equity (other than
the duties imposed on the 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 Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein 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
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interest) to such conflict, agreement, transaction or situation and
the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally
accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so
made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express
standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION 10.4. INDEMNIFICATION.
(a) (i) The Debenture Issuer shall 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) The Debenture Issuer shall 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
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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) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including
dismissal of an action without prejudice or the settlement of
an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a), or in defense of any claim,
issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) 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 Holder of
the Trust.
(v) 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 Sponsor 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 he 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
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obtainable, if a quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust,
that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such
determination is made, such Company Indemnified 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 Holder reasonably determine that such person
deliberately breached his duty to the Trust or its Common
or Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 10.4(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 stockholders or disinterested directors of the
Debenture Issuer or Preferred 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 10.4(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 10.4(a) is in effect.
Any repeal or modification of this Section 10.4(a) shall not
affect any rights or obligations then existing.
(vii) 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 10.4(a).
(viii) For purposes of this Section 10.4(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 10.4(a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence
had continued.
(ix) The indemnification and advancement of expenses
provided by, or
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granted pursuant to, this Section 10.4(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 heirs,
executors and administrators of such a person.
(b) The Sponsor agrees to indemnify (I) the Institutional
Trustee, (II) the Delaware Trustee, (III) any Affiliate of the
Institutional Trustee and the Delaware Trustee, and (IV) any officers,
directors, shareholders, members, partners, employees, representatives,
custodians, nominees or agents of the Institutional Trustee and 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 (or, 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 obligation to indemnify as set forth in this
Section 10.4(b) shall survive the resignation or removal of the
Institutional Trustee or the Delaware Trustee and the satisfaction and
discharge of this Declaration.
(c) The Sponsor agrees to pay the Institutional Trustee and
the Delaware Trustee, from time to time, such compensation for all
services rendered by the Institutional Trustee and the Delaware Trustee
hereunder including reasonable compensation expenses and disbursements
of its agents and counsel as may be mutually agreed upon in writing by
the Sponsor and the Institutional Trustee or the Delaware Trustee, as
the case may be, and, except as otherwise expressly provided herein, to
reimburse the Institutional Trustee and the Delaware trustee upon its
or their request for all reasonable expenses, disbursements and
advances incurred or made by the Institutional Trustee or the Delaware
Trustee, as the case may be, in accordance with the provisions of this
Trust Agreement, except any such expense, disbursement or advance as
may be attributable to its or their negligence or bad faith.
SECTION 10.5. 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
Persons, 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
<Page>
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 XI.
ACCOUNTING
SECTION 11.1. FISCAL YEAR. The fiscal year ("Fiscal Year") of the Trust
shall be the calendar year, or such other year as is required by the Code.
SECTION 11.2. CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of
account, records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of account
shall be maintained on the accrual method of accounting, in accordance
with generally accepted accounting principles, consistently applied.
The Trust shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the records of
the Trust shall be examined by and reported upon as of the end of each
Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United
States federal income tax information statement, required by the Code,
containing such information with regard to the Securities held by each
Holder as is required by the Code and the Treasury Regulations. The
Regular Trustees shall endeavor to deliver all such statements within
30 days after the end of each Fiscal Year of the Trust.
(c) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States
federal income tax return, on a Form 1041 or such other form required
by United States federal income tax law, and any other annual income
tax returns required to be filed by the Regular Trustees on behalf of
the Trust with any state or local taxing authority.
SECTION 11.3. BANKING. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds 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
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for the Institutional Trustee Account.
SECTION 11.4. WITHHOLDING. The Trust and the Regular Trustees shall
comply with all withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder or beneficial owner, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Regular Trustees shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder or beneficial owner, shall remit amounts withheld with respect to
the Holder or beneficial owner 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 or beneficial owner, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder or beneficial owner. In the event of any claimed over
withholding, Holders shall be limited to an action against the applicable
jurisdiction. If the amount required to be withheld was not withheld from actual
Distributions made, the Trust may reduce subsequent Distributions by the amount
of such withholding.
ARTICLE XII.
AMENDMENTS AND MEETINGS
SECTION 12.1. AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be
amended by a written instrument approved and executed by:
(i) the Sponsor and the Regular Trustees (or, if
there are more than two Regular Trustees, a majority of the
Regular Trustees);
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Institutional
Trustee, the Institutional Trustee; and
(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, the
Delaware Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment,
the 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);
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(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 also first received 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 adversely affect the
rights, privileges or preferences of any Holder of Securities may be
effected only with such additional requirements as may be set forth in
the terms of such Securities;
(d) Section 9.1(c), Section 10.1(c) and this Section 12.1
shall not be amended without the consent of all of the Holders of the
Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the 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 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) add to the covenants, restrictions or
obligations of the Sponsor;
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(iv) 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 change does not have a material adverse
effect on the right, preferences or privileges of the Holders;
and
(v) modify, eliminate and add to any provision of
this Declaration to such extent as may be necessary, provided
such modification, elimination or addition would not adversely
affect the rights, privileges or preference of any Holder of
the Securities.
SECTION 12.2. MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN
CONSENT.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or 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 Preferred Securities are listed or admitted for
trading. The Regular Trustees shall call a meeting of the Holders of
such class if directed to do so by the Holders of at least 10% in
liquidation amount of such class of Securities. Such direction shall be
given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a meeting
shall specify in writing the Security Certificates held by the Holders
of Securities exercising the right to call a meeting and only those
Securities evidenced by Securities Certificates so specified shall be
counted for purposes of determining whether the required percentage set
forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of
Holders of Securities:
(i) notice of any such meeting shall be given to all
the Holders of Securities having a right to vote thereat at
least 7 days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders
of Securities is permitted or required under this Declaration
or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders
of Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting if a
consent in writing setting forth the action so taken is signed
by the Holders of Securities owning not less than the minimum
amount of Securities in liquidation amount that would be
necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon
were present and voting. Prompt notice of the taking of action
without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The
Regular Trustees may
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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 Preferred
Securities are then listed or trading, otherwise provides, the
Regular Trustees, in their sole discretion, shall establish
all other provisions relating to meetings of Holders of
Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by
consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote.
ARTICLE XIII.
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1. 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)(i) in the case of the initial Institutional Trustee, it is
a Delaware banking corporation with trust powers, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with trust power and authority to execute and
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deliver, and to carry out and perform its obligations under the
terms of, the Declaration and (ii) in the case of any Successor
Institutional Trustee, it satisfies the requirements of Section
5.3(a) herein;
(b) 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);
(c) 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
(d) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required
for the execution, delivery or performance by the Institutional
Trustee, of the Declaration.
SECTION 13.2. REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE. The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a)(i) in the case of the initial Delaware Trustee, it is a
Delaware banking corporation with trust powers, duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the Declaration and
(ii) in the case of any Successor Delaware Trustee, it satisfies the
requirements of Section 5.2 herein;
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or
at law);
(c) no consent, approval or authorization of, or registration
with or notice to, any
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State or Federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee, of the Declaration;
and
(d) 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 XIV.
MISCELLANEOUS
SECTION 14.1. NOTICES. All notices provided for in this Declaration
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as
the Trust may give notice of to the Holders of the Securities):
PLC Capital Trust III
c/o Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
(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):
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
(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):
(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):
Protective Life Corporation
2801 Highway 280 South
Birmingham, Alabama 35223
<Page>
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2. GOVERNING LAW. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
SECTION 14.3. INTENTION OF THE PARTIES. It is the intention of the
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4. HEADINGS. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 14.5. SUCCESSORS AND ASSIGNS. Whenever in this Declaration any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
SECTION 14.6. PARTIAL ENFORCEABILITY. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.7. COUNTERPARTS. This Declaration may contain more than one
counterpart of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees 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.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
Richard J. Bielen
Regular Trustee
Jerry W. DeFoor
Regular Trustee
WILMINGTON TRUST COMPANY
as Institutional Trustee
By:
Name:
Title:
WILMINGTON TRUST COMPANY
as Delaware Trustee
By:
Name:
Title:
PROTECTIVE LIFE CORPORATION
as Sponsor and Debenture Issuer
By:
Name:
Title:
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ANNEX I
TERMS OF
7-1/2% TRUST ORIGINATED PREFERRED SECURITIES
7-1/2% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of August 22, 2001 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus Supplement referred to below or the
Prospectus, dated July 13, 1999, which it supplements):
1. DESIGNATION AND NUMBER. (a) PREFERRED SECURITIES. 4,000,000
Preferred Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of one hundred million dollars ($100,000,000)
and a liquidation amount with respect to the assets of the Trust of $25 per
preferred security, are hereby designated for the purposes of identification
only as "7-1/2% Trust Originated Preferred Securities(sm) (`TOPrS(sm)')" (the
"Preferred Securities"). The Preferred Security Certificates evidencing the
Preferred 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 ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Preferred Securities are listed.
(b) COMMON SECURITIES. 123,720 Common Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
three million ninety three thousand dollars ($3,093,000) and a liquidation
amount with respect to the assets of the Trust of $25 per common security, are
hereby designated for the purposes of identification only as "7-1/2% Trust
Originated Common Securities" (the "Common Securities"). 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 ordinary usage, custom or practice.
2. DISTRIBUTIONS. (a) Distributions payable on each Security will be
fixed at a rate per annum of 7-1/2% (the "Coupon Rate") of the stated
liquidation amount of $25 per 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 three consecutive months will bear interest thereon
compounded quarterly at the Coupon Rate (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
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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 90-day quarter.
(b) Distributions on the Securities will be cumulative, will
accrue from August 22, 2001, and will be payable quarterly in arrears, on
February 15, May 15, August 15 and November 15 of each year, commencing on
November 15, 2001, 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
exceeding 20 consecutive quarters (each such period, an "Extension Period"),
during which Extension Period no interest shall be due and payable on the
Debentures, provided that no Extension Period shall last beyond the date of
maturity of the Debentures. As a consequence of any such deferral, Distributions
will also be deferred. Despite any such deferral, quarterly Distributions will
continue to accrue with interest thereon (to the extent permitted by applicable
law) at the Coupon Rate compounded quarterly during any such Extension Period.
Prior to the termination of any such Extension Period, the Debenture Issuer may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed 20
consecutive quarters. Upon the termination of any Extension Period, payments of
accrued Distributions will be payable to Holders as they appeared on the books
and records of the Trust on the record date immediately preceding the end of the
applicable 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, subject to the above requirements.
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Preferred Securities remain in book-entry only
form, the relevant record dates shall be one Business Day prior to the relevant
payment dates, which payment dates shall correspond to the interest payment
dates on the Debentures. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading "Description of the
Securities -- Certain terms of the trust preferred securities -- Book-entry only
issuance -- DTC" in the Prospectus Supplement dated August 17, 2001, of the
Trust included in the Registration Statement on Form S-3 of the Sponsor and the
Trust. The relevant record dates for the Common Securities shall be the same
record dates as for the Preferred Securities. If the Preferred Securities shall
cease to be in book-entry only form, the relevant record dates for the Preferred
Securities shall conform to the rules of any securities exchange on which the
securities are listed and, if none, shall be the February 1, May 1, August 1 or
November 1, as the case may be, 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
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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.
(d) 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 herein) among the Holders of the
Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. In the event of any
voluntary or involuntary dissolution, winding-up or termination of the Trust,
the Holders of the Securities on the date of such dissolution, winding-up or
termination, as the case may be, will be entitled to receive out of the assets
of the Trust available for distribution to Holders of Securities after
satisfaction of liabilities of creditors of the Trust an amount equal to the
aggregate of the stated liquidation amount of $25 per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"), unless, in connection with such dissolution,
winding-up or termination, Debentures in an aggregate principal amount equal to
the aggregate stated liquidation amount of such Securities, with an interest
rate equal to the Coupon Rate of, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Securities, shall
be distributed on a Pro Rata basis to the Holders of the Securities in exchange
for such Securities.
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 the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION. (a) The Securities are subject to
redemption in accordance herewith at any time after August 22, 2006 and, in
certain circumstances, following the occurrence of a Special Event (as defined
below).
(b) Upon the repayment of the Debentures in whole or in part,
whether at maturity or upon redemption (either at the option of the Debenture
Issuer or pursuant to a Special Event in each case as described below), the
proceeds from such repayment or payment shall be simultaneously applied to
redeem Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed at a redemption price
of $25 per Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60 days' notice of any such
redemption.
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(c) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be redeemed as
described in Section 4(h)(ii) below.
(d) The Sponsor shall have the right at any time, upon notice
to the Regular Trustees, to elect to terminate the Trust, and upon receipt of
such notice, the Regular Trustees shall dissolve the Trust and, after
satisfaction of creditors of the Trust, cause Debentures held by the
Institutional Trustee, having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
Coupon Rate of, 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 Securities within 90 days following receipt of
the Sponsor's notice of election.
(e) If, at any time, a Tax Event or an Investment Company
Event (each as defined below, and each a "Special Event") has occurred and is
continuing, the Company shall have the right, upon not less than 30 nor more
than 60 days notice, to redeem the Securities in whole but not in part, for cash
in the amount of the Redemption Price, within 90 days following the occurrence
of such Special Event, and, following such redemption, Trust Securities with an
aggregate liquidation amount equal to the aggregate principal amount of the
Securities so redeemed shall be redeemed by PLC Capital at the Redemption Price;
PROVIDED, HOWEVER, that if at the time there is available to the Company or the
Trust the opportunity to eliminate, within such 90 day period, the Tax Event by
taking some Ministerial Action, such as filing a form or making an election or
pursuing some other similar reasonable measure that has no adverse effect on PLC
Capital, the Company or the holders of the Trust Securities, the Company or PLC
Capital will pursue such measure in lieu of a redemption. If the Company does
not elect either to distribute the Securities to the holders of the Preferred
Securities in liquidation of PLC Capital or to redeem the Securities, the Trust
Securities shall remain outstanding and, in the event a Special Event is
continuing, Additional Interest (as defined in Section 2.18 of Supplemental
Indenture No. 5, dated as of August 22, 2001, to the Indenture) will be payable
on the Securities.
"Tax Event" means the receipt by the Company 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 prospective change) in, on or after the day before the date of
issuance of the Preferred Securities under the Declaration of Trust, the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (B) any interpretation or
application of, or pronouncement with respect to, such laws or regulations by
any legislative body, court, governmental agency or regulatory authority, which
amendment or change is effective or which interpretation, application or
pronouncement is announced on or after the day before the date of issuance of
the Preferred Securities under the Declaration of Trust, there is more than an
insubstantial increase in the risk that (x) PLC Capital is, or will be within 90
days of the date thereof, subject to U.S. federal income tax with respect to
income received or accrued on the Securities, (y) interest payable by the
Company on the Securities is not, or within 90 days of the date thereof, will
not be,
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deductible, in whole or in part, for U.S. federal income tax purposes, or (z)
PLC Capital is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
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"Investment Company Event" means that the Regular Trustees shall have
received an opinion of a nationally recognized independent counsel experienced
in practice under the Investment Company Act (an "Investment Company Event
Opinion") 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"), 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, which Change in 1940 Act Law becomes effective
on or after the date of the Prospectus Supplement dated August 17, 2001 relating
to the offer and sale of the Preferred Securities.
"Ministerial Action" means the filing of a form, making an election, or
pursuing some other similar reasonable measure that has no adverse effect on the
Trust, the Debenture Issuer, the Sponsor or the Holders.
After the date for any distribution of Debentures upon dissolution of
the Trust: (I) the Securities will no longer be deemed to be outstanding, (II)
The Depository Trust Company (the "Depository") or its nominee (or any successor
Clearing Agency or its nominee), as the record Holder of the Preferred
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (III) any
certificates representing Securities, except for certificates representing
Preferred Securities held by the Depository 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, with an interest rate identical to the
distribution rate of, 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.
(f) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
(g) If the Debentures are distributed to holders of the
Securities, pursuant to the terms of the Indenture, the Debenture Issuer will
use its best efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange as the Preferred Securities were listed
immediately prior to the distribution of the Debentures.
(h) "Redemption or Distribution Procedures."
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(i) Notice of any redemption 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 date fixed for
redemption of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which notices are given
pursuant to this Section 4(f)(i), 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.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Securities, it being understood
that, in respect of Preferred Securities registered in the name of and
held of record by the Depository or its nominee (or any successor
Clearing Agency or its nominee), the distribution of the proceeds of
such redemption will be made to each Clearing Agency Participant (or
Person on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or nominee.
(iii) 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 4 (which
notice will be irrevocable), then (A) while the Preferred Securities
are in book-entry only form, with respect to the Preferred 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 the Depository or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will give
the Depository irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities, and (B)
with respect to Preferred 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 on the redemption date.
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 and all rights
of Holders of such Securities so called for redemption will cease,
except the right of the
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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 redemption. 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
redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust to (A) in respect of the
Preferred Securities, the Depository or its nominee (or any successor
Clearing Agency or its nominee) if Global Certificates have been issued
or, if Definitive Preferred Security Certificates have been issued, to
the Holder thereof, and (B) in respect of the Common Securities to the
Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities laws),
provided the acquiror is not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of its subsidiaries may
at any time and from time to time purchase outstanding Preferred
Securities by tender, in the open market or by private agreement.
5. VOTING RIGHTS - PREFERRED SECURITIES. (a) Except as provided under
Sections 5(b) and 7 of this Annex I and as otherwise required by law and the
Declaration, the Holders of the Preferred 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 Preferred 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, 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 Section 5.7 of 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, however, that, where a consent or action under the Indenture
would require the consent or act of the Holders of greater than a majority of
the Holders in principal amount of
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Debentures affected thereby (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 Preferred
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 Preferred 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 Preferred 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 a Declaration 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 Preferred 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 Preferred Securities of such Holder
on or after the respective due date specified in the Debentures.
Notwithstanding any payments made to such Holder by the Debenture Issuer in
connection with such proceeding, the Debenture Issuer shall remain obligated
to pay the principal of or interest on the Debentures held by the Trust or
the Institutional Trustee, and the Debenture Issuer shall be subrogated to
the rights of the Holders of Preferred Securities with respect to payments on
the Preferred Securities to the extent of any payments made by the Debenture
Issuer to such Holder in any such proceeding. Except as provided in the
second preceding sentence, the Holders of Preferred Securities will not be
able to exercise directly any other remedy available to the holders of the
Debentures.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred 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 Preferred 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 Preferred 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 Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for
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purposes of such vote or consent, be treated as if they were not outstanding.
6. VOTING RIGHTS - COMMON SECURITIES. (a) Except as provided under
Sections 6(b) and (c) of this Annex I 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 of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after
the Event of Default with respect to the Preferred 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, 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 Section 5.7 of 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
greater than a majority in principal amount of Debentures affected thereby (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(c), the Institutional Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Preferred 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 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.
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.
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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.
7. AMENDMENTS TO DECLARATION AND INDENTURE. (a) In addition to any
requirements under Section 12.1 of the Declaration, if any proposed amendment to
the Declaration provides for, or the Regular Trustees otherwise propose to
effect, (I) any action that would 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, winding-up or termination of the Trust,
other than as described in Section 8.1 of the Declaration, 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 Preferred Securities or only
the Common Securities, then only the affected class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not be effective
except with the approval of 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 of 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
the consent of the holders of greater than a majority in aggregate principal
amount of the Debentures (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 7(b) 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.
8. PRO RATA. A reference in this Annex I 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 Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
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satisfaction of all amounts owed to the Holders of the Preferred 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.
9. RANKING. The Preferred Securities rank pari passu with, 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 Preferred Securities.
10. LISTING. The Regular Trustees shall use their best efforts to cause
the Preferred Securities to be listed for quotation on the New York Stock
Exchange, Inc.
11. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE. Each Holder of
Preferred Securities and Common Securities, by the acceptance thereof, agrees to
the provisions of the Preferred Securities Guarantee and the Common Securities
Guarantee, respectively, including the subordination provisions therein, and to
the provisions of the Indenture.
12. NO PREEMPTIVE RIGHTS. The Holders of the Securities shall have no
preemptive rights to subscribe for any additional securities.
13. MISCELLANEOUS. The foregoing terms set forth in this Annex I
constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to any Holder without charge on written request to the Sponsor
at its principal place of business.
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EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depositary") or a nominee of the Depositary. This Preferred
Security is exchangeable for Preferred 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 Preferred
Security (other than a transfer of this Preferred 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 Preferred Security is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC")
to the Trust or its agent for registration of transfer, exchange or payment, and
any Preferred Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of DTC (and any payment
hereon is made to Cede & Co.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered
owner hereof, Cede & Co., has an interest herein.]
Certificate Number:
Number of Preferred Securities: 4,000,000
CUSIP NO.: 69340M204
Certificate Evidencing Preferred Securities
of
PLC CAPITAL TRUST III
7-1/2% Trust Originated Preferred Securities(SM) ("TOPrS"(SM))
(liquidation amount $25 per Preferred Security)
PLC CAPITAL TRUST III, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that ____________ (the
"Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the 7-1/2% Trust Originated Preferred Securities(SM) (liquidation
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of
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the Preferred 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 August 22, 2001, as the same may be amended
from time to time (the "Declaration"), including the designation of the terms
of the Preferred Securities as set forth in Annex I to 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
Preferred Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Preferred Securities Guarantee
and the Indenture to the 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 Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
Distributions payable on each Preferred Security will be fixed at a
rate per annum of 7-1/2% (the "Coupon Rate") of the stated liquidation amount of
$25 per Preferred 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
Coupon Rate (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 90-day quarter.
Except as otherwise described below, Distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable quarterly in arrears, on February 15, May 15, August 15 and
November 15 of each year, commencing on November 15, 2001, to Holders of record
one (1) Business Day prior to such payment dates, which payment dates shall
correspond to the interest payment dates on the Debentures; provided however,
that if the Preferred Securities are not then in book-entry only form, such
Distributions shall be paid to the Holders of record on the February 1, May 1,
August 1 or November 1, as the case may be, prior to such 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 20 consecutive quarters (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 Coupon Rate
compounded quarterly during any such Extension Period. Prior to the termination
of any such Extension Period, the Debenture Issuer
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may further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
20 consecutive quarters. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on the record
date immediately preceding 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, subject to the
above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
IN WITNESS WHEREOF, the Trust has executed this certificate this _____
day of __________, 200 . ------
PLC CAPITAL TRUST III
BY:
Name:
Title:
<Page>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred 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 Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act for him or
her.
Date:_____________________
Signature: (Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
<Page>
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 more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal income
tax purposes as a grantor Trust; and
(ii) the Trust would be an Investment Company or the transferee would
become an Investment Company.
Certificate Number
Number of Common Securities: 123,720
Certificate Evidencing Common Securities
of
PLC CAPITAL TRUST III
7-1/2% Trust Originated Common Securities
(liquidation amount $25 per Common Security)
PLC CAPITAL TRUST III, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), hereby certifies that __________ (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the 7-1/2%
Trust Originated 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 August 22, 2001, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to 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 Common
Securities Guarantee to the extent provided therein. The Sponsor will
<Page>
provide a copy of the Declaration, the Common Securities 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.
Distributions payable on each Common Security will be fixed at a rate
per annum of 7-1/2 (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
Coupon Rate (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 90-day quarter.
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 15, May 15, August 15 and
November 15 of each year, commencing on November 15, 2001, to Holders of record
one (1) Business Day prior to such payment dates, which payment dates shall
correspond to the interest payment dates on the Debentures; provided, however,
that if the Preferred Securities are not then in book-entry only form, such
Distributions shall be paid to the Holders of record on the February 1, May 1,
August 1 or November 1, as the case may be, prior to such 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 20 consecutive quarters (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 Coupon Rate
compounded quarterly during any such Extension Period. Prior to the termination
of any such Extension Period, the Debenture Issuer may further extend such
Extension Period; provided that such Extension Period together with all such
previous and further extensions thereof may not exceed 20 consecutive quarters.
Payments of accrued Distributions will be payable to Holders as they appear on
the books and records of the Trust on the record date immediately preceding 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, subject to the above requirements.
<Page>
The Common Securities shall be redeemable as provided in the
Declaration.
IN WITNESS WHEREOF, the Trust has executed this certificate this _____
day of __________, 2001.
PLC CAPITAL TRUST III
By:
--------------------------------
Name:
Title:
<Page>
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:_____________________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
<Page>
EXHIBIT B
SPECIMEN OF DEBENTURE
<Page>
EXHIBIT C
PURCHASE AGREEMENT