Exhibit 4.4
AMENDED AND RESTATED
DECLARATION OF TRUST
SIG CAPITAL TRUST I
Dated as of August 12, 1997
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TABLE OF CONTENTS
ARTICLE I
Defined Terms.......... 1
Section 1.1. Definitions.................................................. 1
ARTICLE II
ESTABLISHMENT OF THE TRUST........... 10
Section 2.1. Name......................................................... 10
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.. 10
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses..................................................... 11
Section 2.4. Issuance of the Preferred Securities......................... 11
Section 2.5. Issuance of the Common Securities; Subscription and Purchase
of the Notes................................................. 11
Section 2.6. Purposes and Functions of the Trust.......................... 11
Section 2.7. Authorization to Enter into Certain Transactions............. 12
Section 2.8. Assets of Trust.............................................. 15
Section 2.9. Title to Trust Property...................................... 15
ARTICLE III
PAYMENT ACCOUNT......... 15
Section 3.1. Payment Account....................................... 15
ARTICLE IV
DISTRIBUTIONS; REDEMPTION.... 16
Section 4.1. Distributions......................................... 16
Section 4.2. Redemption............................................ 17
Section 4.3. Subordination of Common Securities.................... 19
Section 4.4. Payment Procedures.................................... 19
Section 4.5. Tax Returns and Reports............................... 19
Section 4.6. Payment of Taxes, Duties, Etc. of Trust............... 19
Section 4.7. Payments under Indenture.............................. 20
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ARTICLE V
TRUST SECURITIES CERTIFICATES.. 20
Section 5.1. Initial Ownership..................................... 20
Section 5.2. General Provisions Regarding Trust Securities......... 20
Section 5.3. Execution and Authentication.......................... 20
Section 5.4. Form and Dating....................................... 21
Section 5.5. Transfer of Trust Securities.......................... 23
Section 5.6. Transfer Procedures and Restrictions.................. 23
Section 5.7. Temporary Securities.................................. 30
Section 5.8. Securities Register and Securities Registrar.......... 30
Section 5.9. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.......................................... 31
Section 5.10. Persons Deemed Securityholders........................ 31
Section 5.11. Access to List of Securityholders' Names and
Addresses............................................. 31
Section 5.12. Maintenance of Office or Agency....................... 31
Section 5.13. Appointment of Paying Agent........................... 32
Section 5.14. Ownership of Common Securities by Sponsor............. 32
Section 5.15. Rights of Securityholders............................. 33
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING... 35
Section 6.1. Limitations on Voting Rights.......................... 35
Section 6.2. Notice of Meetings.................................... 37
Section 6.3. Meetings of Preferred Securities Securityholders...... 38
Section 6.4. Voting Rights......................................... 38
Section 6.5. Proxies, etc.......................................... 38
Section 6.6. Securityholder Action by Written Consent.............. 39
Section 6.7. Record Date for Voting and Other Purposes............. 39
Section 6.8. Acts of Securityholders............................... 39
Section 6.9. Inspection of Records................................. 40
ARTICLE VII
REPRESENTATIONS AND WARRANTIES......... 40
Section 7.1. Representations and Warranties of the Bank, the
Preferred Trustee and the Delaware Trustee............ 40
Section 7.2. Representations and Warranties of Sponsor............. 42
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ARTICLE VIII
THE TRUSTEES................... 42
Section 8.1. Certain Duties and Responsibilities................... 42
Section 8.2. Certain Notices....................................... 43
Section 8.3. Certain Rights of Preferred Trustee................... 44
Section 8.4. Not Responsible for Recitals or Issuance of
Securities............................................ 46
Section 8.5. May Hold Securities................................... 46
Section 8.6. Compensation; Indemnity; Fees......................... 46
Section 8.7. Corporate Preferred Trustee Required; Eligibility of
Trustees.............................................. 47
Section 8.8. Conflicting Interests................................. 48
Section 8.9. Co-Trustees and Separate Trustee...................... 48
Section 8.10. Resignation and Removal; Appointment of Successor..... 49
Section 8.11. Acceptance of Appointment by Successor................ 50
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business.............................................. 51
Section 8.13. Preferential Collection of Claims Against Sponsor or
Trust................................................. 51
Section 8.14. Reports by Preferred Trustee.......................... 52
Section 8.15. Reports to the Preferred Trustee...................... 53
Section 8.16. Evidence of Compliance with Conditions Precedent...... 53
Section 8.17. Number of Trustees.................................... 53
Section 8.18. Delegation of Power................................... 53
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER......... 54
Section 9.1. Dissolution Upon Expiration Date...................... 54
Section 9.2. Early Dissolution..................................... 54
Section 9.3. Termination........................................... 55
Section 9.4. Liquidation........................................... 55
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements
of the Trust.......................................... 57
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ARTICLE X
MISCELLANEOUS PROVISIONS..... 58
Section 10.1. Limitation of Rights of Securityholders............... 58
Section 10.2. Amendment............................................. 58
Section 10.3. Separability.......................................... 60
Section 10.4. Governing Law......................................... 60
Section 10.5. Payments Due on Non-Business Day...................... 60
Section 10.6. Successors............................................ 60
Section 10.7. Headings.............................................. 61
Section 10.8. Reports, Notices and Demands.......................... 61
Section 10.9. Agreement Not to Petition............................. 61
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act................................................... 62
Section 10.11. Acceptance of Terms of Declaration, Company Guarantee
and Indenture......................................... 63
Exhibit A - Certificate of Trust of SIG Capital Trust I Exhibit B - Certificate
of Depository Agreement
Exhibit C - Certificate Evidencing Common Securities of SIG Capital Trust I
Exhibit D - Certificate Evidencing Preferred Securities of SIG Capital Trust I;
Form of Assignment
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SIG CAPITAL TRUST I
Certain Sections of this Amended and Restated Declaration of Trust
Relating to Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
- --------------- ---------------
(ss.)310 (a)(1)............................................8.7
(a)(2)............................................8.7
(a)(3)............................................8.9
(a)(4)............................................2.7(a)(ii)
(b)...............................................8.8
(ss.)311 (a)...............................................8.13
(b)...............................................8.13
(ss.)312 (a)...............................................5.7
(b)...............................................5.7
(c)...............................................5.7
(ss.)313 (a)...............................................8.14(a)
(a)(4)............................................8.14(b)
(b)...............................................8.14(b)
(c)...............................................10.8
(d)...............................................8.14(c)
(ss.)314 (a)...............................................8.15
(b)...............................................Not Applicable
(c)(1)............................................8.16
(c)(2)............................................8.16
(c)(3)............................................Not Applicable
(d)...............................................Not Applicable
(e)...............................................1.1, 8.16
(ss.)315 (a)...............................................8.1(a), 8.3(a)
(b)...............................................8.2, 10.8
(c)...............................................8.1(a)
(d)...............................................8.1, 8.3
(e)...............................................Not Applicable
(ss.)316 (a)...............................................Not Applicable
(a)(1)(A).........................................Not Applicable
(a)(1)(B).........................................Not Applicable
(a)(2)............................................Not Applicable
(b)...............................................5.14
(c)...............................................6.7
(ss.)317 (a)(1)............................................Not Applicable
(a)(2)............................................Not Applicable
(b)...............................................5.9
(ss.)318 (a)...............................................10.10
- -------------
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Amended and Restated Declaration of Trust.
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AMENDED AND RESTATED DECLARATION OF TRUST
OF
SIG CAPITAL TRUST I
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of August 12, 1997, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial ownership interests in the assets of the Trust to be issued pursuant
to this Declaration;
WHEREAS, the Trustees and the Sponsor wish to continue SIG Capital
Trust I (the "Trust"), a business trust created under the Delaware Business
Trust Act pursuant to the original Declaration of Trust of the Trust, dated as
of August 4, 1997 (the "Original Declaration"), and a Certificate of Trust of
the Trust, which was filed with the Secretary of State of the State of Delaware
on August 4, 1997;
WHEREAS, the purposes of the Trust shall be to provide for, among other
things, (i) the issuance of the Common Securities by the Trust to the Sponsor,
(ii) the issuance of sale of the Preferred Securities by the Trust pursuant to
the Purchase Agreement, (iii) the acquisition by the Trust from the Sponsor of
all of the right, title and interest in the Notes and (iv) the appointment of
the Trustees;
WHEREAS, all of the parties hereto, by this Declaration, amend and
restate each and every term and provision of the Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Delaware 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 ownership interests in the assets
of the Trust issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
Defined Terms
Section 1.1. Definitions.
For all purposes of this Declaration, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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(c) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Declaration; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Declaration as a whole and not
to any particular Article, Section or other subdivision.
"Accredited Investor Global Preferred Security" has the
meaning set forth in Section 5.6(b).
"Act" has the meaning specified in Section 6.8.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person, provided, however, that an Affiliate
of the Sponsor shall not be deemed to include the Trust. For the purposes of
this definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Bank" means the Preferred Trustee in its separate corporate
capacity and not in its capacity as Preferred Trustee.
"Bankruptcy Event" means, with respect to any Person, under
the relevant jurisdiction:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under any applicable
U.S. federal or state bankruptcy, insolvency, reorganization or other similar
law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated bankrupt or insolvent, or the consent by it to the institution or
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable U.S. federal or state bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of such Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
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"Board Resolution" means a copy of a resolution certified by
the Secretary, or an Assistant Secretary of the Sponsor to have been duly
adopted by the Sponsor's Board of Directors or such committee of the Board of
Directors or officers of the Sponsor to which authority to act on behalf of the
Board of Directors has been delegated, and to be in full force and effect on the
date of such certification and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.4(b).
"Business Day" means any day other than a day on which banking
institutions in The City of New York or Wilmington, Delaware, are authorized or
required by law to close.
"Certificate Depository Agreement" means the agreement among
the Trust, the Sponsor and DTC, as the initial Clearing Agency, dated as of the
Closing Date, relating to the Trust Securities Certificates, substantially in
the form attached as Exhibit B, as the same may be amended and supplemented from
time to time.
"Change of Control Triggering Event" means the occurrence of a
Change of Control Event (as defined in the Indenture).
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. DTC will be the
Initial Clearing Agent.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" has the meaning specified in the Purchase
Agreement, which data is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in Section 5.2.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Securities Company Guarantee" means the guarantee
agreement dated as of August 12, 1997 of the Sponsor in respect of the Common
Securities.
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"Company Guarantees" means the Common Securities Company
Guarantee and the Preferred Securities Company Guarantee.
"Company Trustee" means each of Alan G. Symons, Douglas H.
Symons and Gary P. Hutchcraft, solely in such Person's capacity as Company
Trustee of the Trust and not in such Person's individual capacity, or such
Company Trustee's successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Corporate Trust Office" means the principal office of the
Preferred Trustee located at 1100 North Market Street, Rodney Square North,
Wilmington, Delaware.
"Declaration" means this Amended and Restated Declaration, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Declaration and any such modification, amendment or supplement
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Declaration and any such modification, amendment or supplement,
respectively.
"Declaration Event of Default" means a Note Event of Default
or a default by the Sponsor under the Guarantee Agreement.
"Definitive Preferred Securities" shall have the meaning set
forth in Section 5.4(c).
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code 12 Del. C. ss.3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means Wilmington Trust Company, a Delaware
banking corporation, solely in its capacity as Delaware Trustee of the Trust and
not in its individual capacity, or its successor in interest in such capacity,
or any successor trustee appointed as herein provided.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust Company, which is the initial
Clearing Agency.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the exchange offer (including any
private exchange offer) contemplated by Section 2(a) of the Registration Rights
Agreement.
"Expiration Date" has the meaning specified in Section 9.1.
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"Global Preferred Security" means the Restricted Global
Preferred Securities, the Regulation S Global Preferred Securities, the
Accredited Investor Global Preferred Securities and the Unrestricted Global
Preferred Securities.
"Holder" has the meaning specified under the definition of
"Securityholder."
"Indenture" means the Senior Subordinated Indenture, dated as
of August 12, 1997, among the Sponsor and the Indenture Trustee, as trustee, as
amended or supplemented from time to time.
"Indenture Trustee" means Wilmington Trust Company, a Delaware
banking corporation, and any successor thereto.
"Investment Company Event" means the receipt by the Sponsor of
an Opinion of Counsel, rendered by a law firm having an independent tax and
securities practice experienced in such matters, to the effect that, as a result
of the occurrence of a change in law or regulation or a change in interpretation
or application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
will be considered an investment company which is required to be registered
under the 1940 Act, which Change in 1940 Act Law becomes effective on or after
the date of original issuance of the Preferred Securities under this
Declaration.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to the principal
amount of Notes to be contemporaneously redeemed in accordance with the
Indenture the proceeds of which will be used to pay the Redemption Price of such
Trust Securities, and (b) with respect to a distribution of Notes to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust
Securities of the Holder to whom such Notes are distributed.
"Liquidation Amount" means the stated amount of $1,000.00 per
Trust Security.
"Liquidation Date" means the date on which Notes are to be
distributed to Holders of Trust Securities in connection with a dissolution and
liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Note Event of Default" means an "Event of Default" as defined
in the Indenture.
"Note Redemption Date" means, with respect to any Notes to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
5
"Note Tax Event" means a "Tax Event" as defined in the
Indenture.
"Notes" means the aggregate principal amount of the Sponsor's
9 1/2% Senior Subordinated Notes, issued pursuant to the Indenture.
"Offering Memorandum" has the meaning specified in Section
2.7(a).
"Officers' Certificate" means a certificate signed by (a) the
Chairman and Chief Executive Officer, President or Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, the Secretary or an Assistant
Secretary or (b) any two members of the Board of Directors of the Sponsor, and
delivered to the appropriate Trustee. 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 the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificates;
(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.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust or the Sponsor, as the case may be, but, other than
in connection with the issuance of the Trust Securities, not an employee of any
thereof, and who shall be reasonably acceptable to the Preferred Trustee.
"Outstanding", when used with respect to Trust Securities
means, as of the date of determination, all Trust Securities theretofore
executed and delivered under this Declaration, except:
(a) Trust Securities theretofore canceled by the Trust or
delivered to the Trust for cancellation;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Preferred Trustee
or any Paying Agent for the Holders of such Trust Securities; provided, that if
such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Declaration; and
(c) Preferred Securities which have been paid or in exchange
for or in lieu of which other Preferred Securities have been executed and
delivered pursuant to Sections 5.4, 5.5
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or 5.6; provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Sponsor, any Trustee or any
Affiliate of the Sponsor or any Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Trustee knows to
be so owned shall be so disregarded and (b) the foregoing shall not apply at any
time when all of the outstanding Preferred Securities are owned by the Sponsor,
one or more of the Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Company Trustees the
pledgee's right so to act with respect to such Preferred Securities and that the
pledgee is not the Sponsor or any Affiliate of the Sponsor.
"Owner" means each Person who is the beneficial owner of a
Global Certificate (see Exhibit B for definition) as reflected in the records of
the Clearing Agency or, if a Clearing Agency Participant is not the owner, then
as reflected in the records of a Person maintaining an account with such
Clearing Agency (directly or indirectly, in accordance with the rules of such
Clearing Agency).
"Participants" has the meaning set forth in Section 5.4(b).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.13 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Preferred Trustee with the Bank in its
trust department for the benefit of the Securityholders in which all amounts
paid in respect of the Notes will be held and from which the Preferred Trustee
shall make payments to the Securityholders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, trust, limited
liability company, unincorporated organization, or government or any agency,
instrumentality or political subdivision thereof, or any other entity of
whatever nature.
"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 Securities" has the meaning specified in Section
5.2(a).
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit D.
7
"Preferred Securities Company Guarantee" means the guarantee
agreement dated as of August 12, 1997 of the Sponsor in respect of the Preferred
Securities.
"Preferred Trustee" means Wilmington Trust Company, a Delaware
banking corporation duly organized and existing under the laws of the State of
Delaware, solely in its capacity as Preferred Trustee of the Trust and not in
its individual capacity, or its successor in interest in such capacity, or any
successor Preferred Trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement dated August
7, 1997, for the offering and sale of Preferred Securities among the Trust, the
Sponsor and the initial purchasers named therein.
"QIBs" shall mean qualified institutional buyers as defined in
Rule 144A.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this
Declaration; provided, that each Note Redemption Date and the stated maturity of
the Notes shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security,
the Redemption Price (as defined in the Indenture) for the concurrent redemption
of a Like Amount of Notes, allocated on a pro rata basis, plus accrued and
unpaid Distributions to the Redemption Date, plus the related amount of the
premium, if any, paid by the Sponsor upon the concurrent redemption of a Like
Amount of Notes, allocated on a pro rata basis (based on Liquidation Amounts)
among the Trust Securities.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Closing Date, by and among Symons International
Group, Inc., the Trust and the Initial Purchasers named therein, as such
agreement may be amended, modified or supplemented from time to time.
"Regulation S" means Regulation S under the Securities Act, as
such regulation may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
"Regulation S Global Preferred Security" has the meaning set
forth in Section 5.4(a).
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Restricted Definitive Preferred Security" means Definitive
Preferred Securities required by Section 5.4(a) to contain the Restricted
Securities Legend.
"Restricted Global Preferred Security" means Restricted Global
Preferred Securities required by Section 5.6(g) to contain the Restricted
Securities Legend.
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"Restricted Preferred Security" means a Preferred Security
required by Section 5.6(g) to contain a Restricted Securities Legend.
"Restricted Securities Legend" has the meaning set forth in
Section 5.6(g).
"Rule 144" means Rule 144 under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.8.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Trust Securities is registered in the Securities Register; any
such Person being a beneficial owner within the meaning of the Delaware Business
Trust Act; provided, however, that in determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Declaration, then for the purpose of any such determination, so long as
Definitive Preferred Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to the Owners.
"Sponsor" means Symons International Group, Inc., a
corporation organized under the laws of the State of Indiana, including any
successors or assigns.
"Tax Event" means that the Sponsor shall have obtained an
Opinion of Counsel of independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to or change (including any
announced proposed change) in the laws (or any regulations thereunder) of the
United States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to or change in an interpretation or application of
such laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination on or after the
date of issuance of the Preferred Securities), which amendment or change is
effective or which proposed change, interpretation or pronouncement is announced
on or after the date of issuance of the Preferred Securities under this
Declaration, there is more than an insubstantial risk that (i) the Trust is, or
will be, subject to United States federal income tax with respect to interest
received or accrued on the Notes, (ii) interest payable to the Trust on the
Notes is not or will not be deductible for United States federal income tax
purposes or (iii) the Trust is or will be subject to more than a de minimis
amount of other taxes, duties, assessments or other governmental charges of
whatever nature imposed by the United States or any other taxing authority.
"Trust" means SIG Capital Trust I, the Delaware business trust
created and continued hereby.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means to the extent required by such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Notes, (b) any cash on deposit
in, or owing to, the Payment Account and (c) all proceeds and rights in respect
of the foregoing and any other property and assets for the time being held or
deemed to be held by the Preferred Trustee pursuant to the terms of this
Declaration.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Preferred Trustee, the
Delaware Trustee and the Company Trustees.
"Unrestricted Global Preferred Securities" means those Global
Preferred Securities not required to contain a Restricted Securities Legend.
10
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.1. Name.
The Trust created hereby shall be known as "SIG Capital Trust I," as
such name may be modified from time to time by the Company Trustees following
written notice to the Holders of Trust Securities and the other Trustees, in
which name the Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in State of Delaware is c/o
Wilmington Trust Company, 1100 North Market Street, Rodney Square North,
Wilmington, Delaware 19890, Attention: Corporate Trust Administration, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Securityholders and the Sponsor. The principal executive
office of the Trust is c/o Symons International Group, Inc., 4720 Kingsway
Drive, Indianapolis, Indiana 46205.
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Preferred Trustee acknowledges receipt in trust from the Sponsor of
the sum of $10, which constituted the initial Trust Property. Pursuant to the
Indenture, the Sponsor, as borrower, shall pay organizational expenses of the
Trust as they arise or shall, upon request of any Trustee, promptly reimburse
such Trustee for any such expenses paid by such Trustee. The Sponsor shall make
no claim upon the Trust Property for the payment of such expenses.
Section 2.4. Issuance of the Preferred Securities.
The Sponsor, on behalf of the Trust, executed and delivered the
Purchase Agreement. Contemporaneously with the execution and delivery of this
Declaration, a Company Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Initial Purchasers named in the
Purchase Agreement Preferred Securities Certificates, registered in the name of
the nominee of the initial Clearing Agency, in an aggregate amount of 135,000
Preferred Securities having an aggregate Liquidation Amount of $135,000,000,
against receipt of such aggregate purchase price of such Preferred Securities of
$135,000,000, which amount the Company Trustee shall promptly deliver to the
Preferred Trustee.
Section 2.5. Issuance of the Common Securities; Subscription and
Purchase of the Notes.
Contemporaneously with the execution and delivery of this Declaration,
a Company Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Sponsor Common Securities Certificates,
registered in the name of the Sponsor, in an aggregate amount of 4,176 Common
Securities having an aggregate Liquidation Amount of $4,176,000 against payment
by the Sponsor of such amount. Contemporaneously therewith, a Company
11
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Sponsor Notes, registered in the name of the Trust and having an aggregate
principal amount equal to $139,176,000, and, in satisfaction of the purchase
price for such Notes, a Company Trustee and the Preferred Trustee, on behalf of
the Trust, shall deliver to the Sponsor the sum of $139,176,000.
Section 2.6. Purposes and Functions of the Trust.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the Notes,
and (b) to engage in only those other activities necessary, convenient or
incidental thereto. The Sponsor hereby appoints the Trustees as trustees of the
Trust, to have all the rights, powers and duties to the extent set forth herein,
and the Trustees hereby accept such appointment. The Preferred Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders. The Company Trustees shall have all rights, powers and duties
set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Preferred Trustee or the Company Trustees
set forth herein. Notwithstanding anything herein to the contrary, the Delaware
Trustee shall be one of the Trustees of the Trust for the sole and exclusive
purpose of fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Declaration. Subject to the limitations set
forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Declaration, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Company Trustee
shall have the power and authority to act on behalf of the Trust with respect to
the following matters:
(A) the issuance and sale of the Trust
Securities;
(B) to cause the Trust to enter into,
and to execute, deliver and perform on behalf of the Trust, the Registra-
tion Rights Agreement, the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection with the purposes and
function of the Trust;
(C) assisting in the registration of the
Preferred Securities under the Securities Act and under state securities or
blue sky laws, and the qualification of this Declaration as a trust indenture
under the Trust Indenture Act;
(D) assisting in the preparation and
execution, if necessary, of an offering memorandum (the "Offering Memorandum")
in preliminary and final form, in relation
12
to the offering and sale of Preferred Securities to QIBs in reliance on Rule
144A under the Securities Act, to institutional "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and outside
the United States to non-U.S. Persons in offshore transactions in reliance on
Regulation S under the Securities Act;
(E) assisting in the registration of the
Preferred Securities under the Exchange Act in accordance with the terms of
the Registration Rights Agreement and in connection with the Exchange Offer
and the preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing as well as in one or more applications to
exempt the Trust from the periodic reporting requirements of the Exchange Act;
(F) the sending of notices (other than
notices of default) and other information regarding the Trust Securityholders in
accordance with this Declaration;
(G) the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with this
Declaration;
(H) registering transfer of the Trust
Securities in accordance with this Declaration;
(I) to the extent provided in this
Declaration, the winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of cancellation with
the Secretary of State of the State of Delaware;
(J) unless otherwise required by the
Trust Indenture Act, to execute on behalf of the Trust (either acting alone or
together with any or all of the Company Trustees) any documents that the Company
Trustees have the power to execute pursuant to this Declaration; and
(K) the taking of any action incidental
to the foregoing as the Trustees may from time to time determine is necessary
or advisable to give effect to the terms of this Declaration for the benefit of
the Securityholders (without consideration of the effect of any such action
on any particular Securityholder).
(ii) As among the Trustees, the Preferred Trustee
shall have the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment
Account;
(B) the receipt of the Notes;
(C) the collection of interest,
principal and any other payments made in respect of the Notes in the Payment
Account;
(D) the distribution of amounts owed to
the Securityholders in respect of the Trust Securities;
13
(E) the exercise of all of the rights,
powers and privileges of a holder of the Notes;
(F) the sending of the notices of de-
fault and other information regarding the Trust Securities and the Notes to the
Securityholders in accordance with this Declaration;
(G) the distribution of the Trust
Property in accordance with the terms of this Declaration;
(H) to the extent provided in this
Declaration, the winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of cancellation with
the Secretary of State of the State of Delaware;
(I) after a Declaration Event of
Default, the taking of any action incidental to the foregoing as the Trustees
may from time to time determine is necessary or advisable to give effect to the
terms of this Declaration for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular Security-
holder); and
(J) except as otherwise provided in this
Section 2.7(a)(ii), the Preferred Trustee shall have none of the duties,
liabilities, powers or the authority of the Company Trustees set forth in
Section 2.7(a)(i).
(b) So long as this Declaration remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Declaration, (ii)
sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify for United States federal income tax purposes
as a grantor trust or another entity which is not subject to United States
federal income tax purposes as held and derived directly by holders of interests
in the entity, (iv) incur any indebtedness for borrowed money or issue any other
debt or (v) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Company Trustees shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Sponsor in furtherance of the following prior to the date
of this Declaration are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with
the Commission and the execution on behalf of the Trust of a registration
statement under the Securities Act on the appropriate form in relation to the
Preferred Securities, including any amendments thereto.
14
(ii) the preparation and execution of the
Offering Memorandum in preliminary and final form, in relation to the offering
and sale of Preferred Securities to QIBs in reliance on Rule 144A under the
Securities Act, to institutional "accredited investors" (as defined in Rule 501
(a)(1), (2), (3) or (7) under the Securities Act) and outside the United States
to non-U.S. Persons in offshore transactions in reliance on Regulation S under
the Securities Act.
(iii) the determination of the States in which to
take appropriate action to qualify or register for sale all or part of the
Preferred Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to the
Trustees of actions they must take on behalf of the Trust, and the preparation
for execution and filing of any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Sponsor deems necessary or advisable in order
to comply with the applicable laws of any such States;
(iv) the preparation for filing by the Trust with
the Commission and the execution on behalf of the Trust of registration
statement on Form 8-A relating to the registration of the Preferred Securities
under Section 12(b) or 12(g) of the Exchange Act, including any amendments
thereto;
(v) the negotiation of the terms of, and the
execution and delivery of, the Purchase Agreement providing for the sale of the
Preferred Securities; and
(vi) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Company Trustees are authorized and directed to conduct the affairs of the Trust
and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or taxed as a
corporation for United States federal income tax purposes and so that the Notes
will be treated as indebtedness of the Sponsor for United States federal income
tax purposes. In this connection, the Sponsor and the Company Trustees are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Declaration, that each of the Sponsor and the
Company Trustees determines in their discretion to be necessary or desirable for
such purposes, as long as such action does not adversely affect in any material
respect the interests of the Holders of Preferred Securities.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Preferred Trustee (in its capacity as such) and shall be held and administered
by the Preferred Trustee for the benefit of the Trust and the Securityholders in
accordance with this Declaration.
15
ARTICLE III
PAYMENT ACCOUNT
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Preferred Trustee
shall establish the Payment Account. The Preferred Trustee and any agent of the
Preferred Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making withdrawals from the
Payment Account in accordance with this Declaration. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Preferred Trustee in the Payment Account for the exclusive benefit
of the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Preferred Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or interest on, and
any other payments or proceeds with respect to, the Notes. Amounts held in the
Payment Account shall not be invested by the Preferred Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative.
Distributions shall accrue from August 15, 1997, and shall be payable
semi-annually in arrears on February 15 and August 15 of each year, commencing
on February 15, 1998, when and if the Trust has funds available for payment. If
any date on which a Distribution is otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall 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, payment of such Distribution shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
ownership interests in the Trust Property. Distributions on the Trust Securities
shall be payable at a rate of 9 1/2% per annum of the Liquidation Amount of the
Trust Securities. Distributions in arrears for more than one semi-annual period
(and interest thereon) will accrue interest (compounded semi-annually) at the
same rate. The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months.
16
(c) Distributions on the Trust Securities shall be made by the
Preferred Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then legally
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be one day prior to such Distribution Date; provided, however, that in the
event that the Preferred Securities do not remain in book-entry-only form, the
relevant record date shall be the date 15 days prior to the relevant
Distribution Date.
(e) Upon the occurrence of any event specified in Section 2(e)
of the Registration Rights Agreement, additional interest will accrue on the
principal amount of the Senior Subordinated Notes, and, as a result, on the
liquidation amount of Preferred Securities, in the amounts set forth in and
otherwise in accordance with Section 3.7 of the Indenture.
Section 4.2. Redemption.
(a) On each Note Redemption Date and on the stated maturity of
the Notes, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price. The Trust Securities shall not be redeemed
unless all accrued and unpaid Distributions have been paid on all Trust
Securities for all semi-annual distribution periods terminating on or prior to
the Redemption Date.
(b) Notice of redemption shall be given by the Preferred
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall be irrevocable and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date that the
Redemption Price will become due and payable upon each such Trust Security to be
redeemed and that distributions thereon will cease to accrue on and after said
date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Notes. Redemptions of the Trust Securities shall
be made and the Redemption Price shall be payable on
17
each Redemption Date only to the extent that the Trust has funds then legally
available in the Payment Account for the payment of such Redemption Price.
(d) If the Preferred Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Preferred Trustee will, with
respect to the Preferred Securities that are in book-entry-only form,
irrevocably deposit with the Clearing Agency for the Preferred Securities funds
sufficient to pay the applicable Redemption Price to the holders thereof. With
respect to the Preferred Securities that are no longer in book-entry-only form,
the Preferred Trustee, subject to Section 4.2(c), will irrevocably deposit with
the Payment Agent funds sufficient to pay the applicable Redemption Price to the
Holders thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Register for the
Trust Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds deposited as
required, then upon the date of such deposit, all rights of Securityholders
holding Trust Securities so called for redemption will cease, except for the
right of such Securityholders to receive the Redemption Price and any
Distributions payable on or prior to the Redemption Date, but without interest
on the Redemption Price. In the event that any date on which any Redemption
Price is payable 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 the event that payment of the
Redemption Price in respect of any Trust Securities called for redemption is
improperly withheld or refused and not paid either by the Trust or by the
Sponsor pursuant to the Guarantee, Distributions on such Trust Securities will
continue to accrue, at the then applicable rate, from the Redemption Date
originally established by the Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will be
the date fixed for redemption for purposes of calculating the Redemption Price
(other than for purposes of calculating any premium).
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the record holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
one day prior to the relevant Redemption Date; provided, however, that with
respect to the Preferred Securities that are not in book-entry-only form, the
relevant record date shall be the date 15 days prior to the relevant Redemption
Date. In the event that any date on which payment of the Redemption Price on the
Preferred Securities is not a Business Day, payment of the Redemption Price
shall be made in accordance with Section 4.1(d) above.
(f) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the Common
Securities and the Preferred Securities. The particular Preferred Securities to
be redeemed shall be redeemed on a pro rata basis (based on Liquidation Amounts)
not more than 60 days prior to the Redemption Date by the Preferred Trustee from
the Outstanding Preferred Securities not previously called for redemption. The
Preferred Trustee shall promptly
18
notify the Security Registrar in writing of the Preferred Securities selected
for redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Declaration, unless the context otherwise requires, all provisions relating
to the redemption of Preferred Securities shall relate, in the case of any
Preferred Securities redeemed or to be redeemed only in part, to the portion of
the Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
(g) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), the Sponsor or 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.
Section 4.3. Subordination of Common Securities.
Payment of Distributions on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made, subject to Section 4.2(f), pro rata
among the Common Securities and the Preferred Securities based on the respective
Liquidation Amounts of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date a Declaration Event of Default shall have
occurred and be continuing, no payment of any Distribution on, or Redemption
Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of accumulated and unpaid Distributions on all
Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds available to the Preferred Trustee
shall first be applied to the payment in full in cash of all Distributions on,
or the Redemption Price of, Preferred Securities then due and payable.
19
Section 4.4. Payment Procedures.
Payments of Distributions in respect of the Preferred Securities shall
be made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Preferred Trustee and the Common Security
Securityholder.
Section 4.5. Tax Returns and Reports.
The Company Trustees shall prepare (or cause to be prepared), at the
expense of the Sponsoras issuer of the Notes, and file all United States
federal, state and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Company Trustees shall
(a) prepare and file (or cause to be prepared and filed) the appropriate
Internal Revenue Service Form required to be filed in respect of the Trust in
each taxable year of the Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Securityholder the appropriate Internal Revenue
Service form required to be provided on such form. The Company Trustees shall
comply with United States federal withholding and backup withholding tax laws
and information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
Section 4.6. Payment of Taxes, Duties, Etc. of Trust.
Pursuant to Section 10.18 of the Indenture, the Sponsor, in its
capacity as issuer of the Notes, has agreed to pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed
on the Trust by the United States or any other taxing authority.
Section 4.7. Payments under Indenture.
Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder (and any
Owner with respect thereto) has directly received pursuant to Section 5.12 of
the Indenture.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Sponsor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no trust Securities are outstanding, the Sponsor shall be
the sole beneficial owner of the Trust.
Section 5.2. General Provisions Regarding Trust Securities.
20
The Company Trustees shall, on behalf of the Trust, issue one class of
preferred securities representing undivided beneficial interests in the assets
of the Trust, which class may be divided into no more than two series (the
"Preferred Securities"), and one class of common securities representing
undivided beneficial interests in the assets of the Trust, which class may be
divided into no more than two series (the "Common Securities"). The Trust is
hereby authorized to issue Preferred Securities in accordance with and as
contemplated by the Registration Rights Agreement. The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
The consideration received by the Trust for the issuance of the Trust
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
Upon issuance of the Trust Securities as provided in this Declaration,
the Trust Securities so issued shall be deemed to be validly issued, fully paid
and non-assessable.
Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
Section 5.3. Execution and Authentication.
The Trust Securities shall be signed on behalf of the Trust by a
Company Trustee. In case any Company Trustee of the Trust who shall have signed
any of the Trust Securities shall cease to be such Company Trustee before the
Trust Securities so signed shall have been delivered by the Trust, such Trust
Securities nevertheless may be delivered as though the Person who signed such
Trust Securities had not ceased to be such Company Trustee; and any Trust
Securities may be signed on behalf of the Trust by such Person who, at the
actual date of execution of such Trust Security, shall be the Company Trustees
of the Trust, although at the date of the execution and delivery of the
Declaration any such Person was not such a Company Trustee.
One Company Trustee shall sign the Preferred Securities for the Trust
by manual or facsimile signature. Unless otherwise determined by the Trust, such
signature shall, in the case of the Common Securities, be a manual signature.
A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Preferred Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Declaration.
Upon written order of the Trust signed by one Company Trustee, the
Preferred Trustee shall authenticate the Preferred Securities for original
issue. The aggregate number of Preferred Securities outstanding at any time
shall not exceed 130,000, except as provided in Section 5.8.
The Preferred Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Preferred Trustee may do so. Each
reference in this Declaration to authentication
21
by the Preferred Trustee includes authentication by such agent. An
authenticating agent has the same rights as the Preferred Trustee to deal with
the Sponsor or an Affiliate.
Section 5.4. Form and Dating.
The Preferred Securities and the Preferred Trustee's certificate of
authentication shall be substantially in the form of Exhibit D, and the Common
Securities shall be substantially in the form of Exhibit C, each of which being
hereby incorporated in and expressly made a part of this Declaration.
Certificates representing the Trust Securities may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Company Trustees, as evidenced by their execution thereof. The Trust
Securities may have letters, CUSIP or other numbers, notations or other marks of
identification or designation and such legends or endorsements required by law,
stock exchange rule, agreements to which the Trust is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the the Company Trustees). The Trust at the direction of the Sponsor shall
furnish any such legend not contained in Exhibit D to the Preferred Trustee in
writing. Each Preferred Security shall be dated the date of its authentication.
The forms of Trust Securities set forth in Exhibits C and D are part of the
terms of this Declaration and to the extent applicable, the Preferred Trustee,
the Company Trustees and the Sponsor, by their execution and delivery of the
Declaration, expressly agree to be bound thereby.
(a) Global Securities. Trust Securities offered and sold to
QIBs in reliance on Rule 144A, offered and sold outside the United States to
non-U.S. Persons in offshore transactions in reliance on Regulation S or offered
and sold to "accredited investors" (as defined in Rule 501(a)(1), (2), (3) or
(7)) who did not purchase Preferred Securities in reliance on Regulation S, as
provided in the Purchase Agreement, shall be issued in the form of one or more
permanent Global Securities in definitive, fully registered form without
Distribution coupons with the appropriate global legends and Restricted
Securities Legend set forth in Exhibit D hereto (respectively, a "Restricted
Global Preferred Security," a "Regulation S Preferred Security" and an
"Accredited Investor Global Preferred Security,"), which shall be deposited on
behalf of the purchasers of the Preferred Securities represented thereby with
the Preferred Trustee, at its Wilmington, Delaware office, as custodian for the
Clearing Agency, and registered in the name of the Clearing Agency or a nominee
of the Clearing Agency, duly executed by the Trust and authenticated by the
Preferred Trustee as herein provided. The number of Preferred Securities
represented by the Restricted Global Preferred Security, the Regulation S Global
Preferred Security and the Accredited Investor Global Preferred Security may
from time to time be increased or decreased by adjustments made on the records
of the Preferred Trustee and the Clearing Agency or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 5.4(b) shall apply
only to the Restricted Global Preferred Securities, the Regulation S Global
Preferred Securities, and the Accredited Investor Global Preferred Securities
and such other Preferred Securities in global form as may be authorized by the
Trust to be deposited with or on behalf of the Clearing Agency.
A Company Trustee on behalf of the Trust shall execute and the
Preferred Trustee shall, in accordance with this Section 5.4 authenticate and
make available for delivery initially one or more Restricted Global Preferred
Securities, one or more Regulation S Global Preferred
22
Securities and one or more Accredited Investor Global Preferred Securities that
(i) shall be registered in the name of Cede & Co. or other nominee of such
Clearing Agency and (ii) shall be delivered by the Preferred Trustee to such
Clearing Agency or pursuant to such Clearing Agency's written instructions or
held by the Preferred Trustee as custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Declaration with respect to any
Restricted Global Preferred Security, any Regulation S Global Preferred Security
or any Accredited Investor Global Preferred Security held on their behalf by the
Clearing Agency or by the Preferred Trustee as the custodian of the Clearing
Agency or under such Restricted Global Preferred Security, such Regulations S
Preferred Security or such Accredited Investor Global Preferred Security, and
the Clearing Agency may be treated by the Trust, the Preferred Trustee and by
agents of the Trust or the Preferred Trustee as the absolute owner of such
Restricted Global Preferred Security, such Regulation S Global Preferred
Security or such Accredited Investor Global Preferred Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Trust, the Preferred Trustee or any agent of the Trust or the Preferred Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Clearing Agency or impair, as between the Clearing Agency and
its Participants, the operations or customary practices of such Clearing Agency
governing the exercise of the rights of a holder of beneficial interest in any
Restricted Global Preferred Security, any Regulation S Global Preferred Security
or any Accredited Investor Global Preferred Security.
(c) Definitive Preferred Securities. Except as provided in
Section 5.6, owners of a beneficial interest in a Restricted Global Preferred
Security, a Regulation S Global Preferred Security or an Accredited Investor
Global Preferred Security will not be entitled to receive physical delivery of
certificated Preferred Securities ("Definitive Preferred Securities").
Definitive Preferred Securities will bear the Restricted Securities Legend set
forth on Exhibit D unless removed in accordance with this Section 5.4. or
Section 5.6.
Section 5.5. Transfer of Trust Securities.
(a) Trust 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 Trust Securities. To the fullest extent permitted by
law, any transfer or purported transfer of any Trust Security not made in
accordance with this Declaration shall be null and void.
(b) Subject to the transfer requirements provided in this
Article IV, Preferred Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration. Any
transfer or purported transfer of any Preferred Security not made in accordance
with this Declaration shall be null and void.
(c) Subject to Section 9.5 and except as provided in Article
VIII of the Indenture, to the fullest extent permitted by law, the Sponsor may
not transfer the Common Securities.
(d) The Company Trustees shall provide for the registration of
Securities and of the transfer of Securities, which will be effected without
charge but only upon payments (with
23
indemnity as the Company Trustees may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon surrender for
registration of transfer of any Trust Securities, the Company Trustees shall
cause one or more new Trust Securities to be issued in the name of the
designated transferee or transferees. Every Trust Security surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Company Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Trust Security
surrendered for registration of transfer shall be canceled by the Company
Trustees. A transferee of a Trust Security shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon receipt by such transferee
of a Trust Security. By acceptance of a Trust Security, each transferee shall be
deemed to have expressly assumed and agreed to the terms of, and shall be bound
by, this Declaration.
Section 5.6. Transfer Procedures and Restrictions.
General. If Preferred Securities are issued upon the transfer, exchange
or replacement of Preferred Securities bearing the Restricted Securities Legend
in Exhibit D hereto, or if a request is made to remove the Restricted Securities
Legend on Preferred Securities, the Preferred Securities so issued shall bear
the Restricted Securities Legend, or the Restricted Securities Legend shall not
be removed, as the case may be, unless there is delivered to the Trust and the
Preferred Trustee such satisfactory evidence, which shall include an Opinion of
Counsel licensed to practice law in the State of New York, as may be reasonably
required by the Sponsor and the Preferred Trustee, that neither the legend nor
the restrictions on transfer set forth therein are required to ensure that
transfers thereof are made pursuant to an exception from the registration
requirements of the Securities Act or, with respect to Restricted Securities,
that such Trust Securities are not "restricted" within the meaning of Rule 144.
Upon provision of such satisfactory evidence, the Preferred Trustee, at the
written direction of a Company Trustee on behalf of the Trust, shall
authenticate and deliver Preferred Securities that do not bear the legend.
(a) Transfer and Exchange of Definitive Preferred
Securities. When Definitive Preferred Securities are presented to the Securities
Registrar:
(i) to register the transfer of such Definitive
Preferred Securities or
(ii) to exchange such Definitive Preferred
Securities which became mutilated, defaced, stolen or lost, for an equal number
of Definitive Preferred Securities, the Securities Registrar shall register the
transfer or make the exchange as requested if its reasonable requirements for
such transaction are met; provided, however, that the Definitive Preferred
Securities are surrendered for transfer or exchange:
(x) shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Trust and the Securities Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(y) in the case of Definitive Preferred
Securities that are Restricted Definitive Preferred Securities:
24
(A) if such Restricted
Preferred Securities are being delivered to the Securities Registrar by a Holder
for registration in the name of such Holder without transfer, a certification
from such Holder to that effect; or
(B) if such Restricted
Preferred Securities are being transferred: (x) a certification from the
transferor in a form substantially similar to that attached hereto as the
"Assignment" in Exhibit D, and (y) if the Trust or Securities Registrar so
requested, evidence reasonably satisfactory to them as to the compliance with
the restrictions set forth with the Restricted Securities Legend.
(b) Restrictions on Transfer of a Definitive Preferred
Security for a Beneficial Interest in a Global Preferred Security. A Definitive
Preferred Security may not be exchanged for a beneficial interest in a Global
Preferred Security except upon satisfaction of the requirements set forth below.
Upon receipt by the Preferred Trustee of a Definitive Preferred Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Preferred Trustee, together with:
(i) if such Definitive Preferred Security is a
Restricted Preferred Security, a written certificate (in a form substantially
similar to that attached hereto as the "Assignment" in Exhibit D); provided,
however, that such Definitive Preferred Security may only be exchanged for any
interest in a Regulation S Global Security where such Definitive Preferred
Security is being transferred pursuant to Regulation S or Rule 144 (if
available); and
(ii) whether or not such Definitive Preferred
Security is a Restricted Preferred Security, written instructions directing the
Preferred Trustee to make, or to direct the Clearing Agency to make, an
adjustment on its books and records with respect to the appropriate Global
Preferred Security to reflect an increase in the number of the Preferred
Securities represented by such Global Preferred Security, then the Preferred
Trustee shall cause such Definitive Preferred Security and cause, or direct the
Clearing Agency to cause, the aggregate number of Preferred Securities
represented by the appropriate Global Preferred Security to be increased
accordingly. If no Global Securities are then outstanding, a Company Trustee
shall cause the Trust to issue and the Preferred Trustee shall authenticate,
upon written order of any Company Trustee, an appropriate number of Preferred
Securities in global form.
(c) Transfer and Exchange of Global Preferred Securities.
Subject to Section 5.6(d), the transfer and exchange of Global Preferred
Securities or beneficial interests therein shall be effected through the
Clearing Agency in accordance with this Declaration (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in a Global Preferred
Security for a Definitive Preferred Security. Any Person having a beneficial
interest in a Global Preferred Security may upon request, but only upon 20 days
prior notice to the Preferred Trustee, and if accompanied by the information
specified below, exchange such beneficial interest for a Definitive Preferred
Security representing the same number of Preferred Securities. Upon receipt by
the Preferred Trustee from the Clearing Agency or its nominee on behalf of any
Person having a beneficial interest in a Global Preferred Security of written
instructions or such other form of
25
instructions as is customary for the Clearing Agency or the Person designated by
the Clearing Agency as having such a beneficial interest in a Restricted
Preferred Security and a certification from the transferor (in a form
substantially similar to that attached hereto as the "Assignment" in Exhibit D),
which may be submitted by facsimile, then the Preferred Trustee will cause the
aggregate number of Preferred Securities represented by Global Preferred
Securities to be reduced on its books and records and, following such reduction,
a Company Trustee on behalf of the Trust will execute and the Preferred Trustee
will authenticate and make available for delivery to the transferee a Definitive
Preferred Security.
Definitive Preferred Securities issued in exchange for a
beneficial interest in a Global Preferred Security pursuant to this Section
5.6(d) shall be registered in such names and in such authorized denominations as
the Clearing Agency pursuant to instruction from its Participants or indirect
participants or otherwise, shall instruct the Preferred Trustee in writing. The
Preferred Trustee shall deliver such Preferred Securities to the Person in whose
names such Preferred Securities are so registered in accordance with the
instructions of the Clearing Agency.
(e) Restrictions on Transfer and Exchange of Global Preferred
Securities. Notwithstanding any other provisions in the Declaration (other than
the provisions set forth in Section 5.6(f)), a Global Preferred Security may not
be transferred as a whole except by the Clearing Agency to a nominee of the
Clearing Agency or another nominee of the Clearing Agency or by the Clearing
Agency or a nominee of such successor Clearing Agency.
(i) Beneficial interests in the Accredited
Investor Global Preferred Security may be, and prior to the expiration of the
restricted period, as contemplated by Regulation S, beneficial interests in the
Regulation S Global Preferred Security may be exchanged for beneficial interests
in the Restricted Global Preferred Security only if such exchange occurs in
connection with a transfer of the Preferred Securities pursuant to Rule 144A and
the transferor first delivers to the Trustee a written certificate (in a form
substantially similar to that attached hereto as the "Assignment" in Exhibit D)
to the effect that the Preferred Securities are being transferred to a Person
who the transferor reasonably believes is a QIB, purchasing for its own account
or the account of a QIB in a transaction meeting the requirements of Rule 144A
and in accordance with all applicable securities laws of the states of the
United States and other jurisdictions.
(ii) Beneficial interests in the Restricted
Global Preferred Security may be, and prior to the expiration of the restricted
period, as contemplated by Regulation S, beneficial interests in the Regulation
S Global Preferred Security may be, exchanged for beneficial interests in the
Accredited Investor Global Preferred Security only if such exchange occurs in
connection with a transfer of the Preferred Securities to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or (7)
of Rule 501 under the Securities Act that is acquiring the Preferred Security
for its own account, or for the account of such institutional accredited
investor, for investment purposes and not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act.
(iii) Beneficial interests in the Restricted
Global Preferred Security or in the Accredited Investor Global Preferred
Security may be transferred to a Person who takes delivery in the form of an
interest in the Regulation S Global Preferred Security, whether before
26
or after the expiration of such restricted period, as contemplated by Regulation
S, only if the transferor first delivers to the Preferred Trustee a written
certificate (in a form substantially similar to that attached hereto as the
"Assignment" in Exhibit D) to the effect that such transfer is being made in
accordance with Rule 903 or 904 of Regulations S or Rule 144 (if available) and
that, if such transfer occurs prior to the expirations of such restricted
period, the interest transferred will be held immediately thereafter through
Euroclear or CEDEL.
(f) Authentication of Definitive Preferred Securities.
If at any time:
(i) there occurs a Declaration Event of Default
which is continuing, or
(ii) a Company Trustee on behalf of the Trust, in
its sole discretion, notifies the Preferred Trustee in writing that it elects to
cause the issuance of Definitive Preferred Securities under this Declaration,
then a Company Trustee on behalf of the Trust will execute, and the Preferred
Trustee, upon receipt of a written order of the Trust signed by one Company
Trustee requesting authentication and delivery of Definitive Preferred
Securities to the Persons designated by the Trust, will authenticate and make
available for delivery Definitive Preferred Securities, equal in number to the
number of Preferred Securities represented by Global Preferred Securities, in
exchange for such Global Preferred Securities.
(g) Legend.
(i) Except as permitted by the following
paragraph (ii), each Preferred Security Certificate evidencing the Global
Preferred Securities and the Definitive Preferred Securities (and all Preferred
Securities issued in exchange therefor or substitution thereof, except in the
Exchange Offer) shall bear a legend (the "Restricted Securities Legend") in
substantially the following form:
THE PREFERRED SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS PREFERRED SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THE PREFERRED SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS PREFERRED
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY
27
"AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS PREFERRED
SECURITY (OR ANY PREDECESSOR OF THIS PREFERRED SECURITY) ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) SO LONG AS THIS PREFERRED SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"),
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE OF RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-UNITED STATES PERSONS THAT OCCUR OUTSIDE THE
UNITED SATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
PREFERRED SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, SUBJECT TO THE RIGHT OF THE TRUST AND THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER, (i)
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO CLAUSE (E)
TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A LETTER
FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO
THE OFFERING MEMORANDUM DATED AUGUST 7, 1997. SUCH HOLDER
FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS PREFERRED SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND.
In the case of the Regulation S Global Preferred Security
THIS PREFERRED SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT AND MAY NOT BE OFFERED
28
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, UNITED STATES PERSONS UNLESS REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.
(ii) Upon any sale or transfer of a Restricted
Preferred Security (including any Restricted Preferred Security represented by a
Global Preferred Security) pursuant to an effective registration statement under
the Securities Act or pursuant to Rule 144 of the Securities Act:
(A) in the case of any Restricted
Preferred Security that is a Definitive Preferred Security, the Securities
Registrar shall permit the Holder thereof to exchange such Restricted Preferred
Security for a Definitive Preferred Security that does not bear the Restricted
Securities Legend and rescind any restriction on the transfer of such Restricted
Preferred Security; and
(B) in the case of any Restricted
Preferred Security that is represented by a Global Preferred Security, the
Securities Registrar shall permit the Holder of such Global Preferred Security
to exchange such Global Preferred Security for another Global Preferred Security
that does not bear the Restricted Securities Legend.
(h) Cancellation or Adjustment of Global Preferred Security.
At such time as all beneficial interests in a Global Preferred Security have
either been exchanged for Definitive Preferred Securities to the extent
permitted by this Declaration or redeemed, repurchased or canceled in accordance
with the terms of this Declaration, such Global Preferred Security shall be
returned to the Clearing Agency for cancellation or retained and canceled by the
Preferred Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Preferred Security is exchanged for Definitive Preferred
Securities, Preferred Securities represented by such Global Preferred Security
shall be reduced and an adjustment shall be made on the books and records of the
Preferred Trustee (if it is then the custodian for such Global Preferred
Security) with respect to such Global Preferred Security, by the Preferred
Trustee, to reflect such reduction.
(i) No Obligations of the Preferred Trustee. The Preferred
Trustee shall have no responsibility or obligation to any beneficial owner of a
Global Preferred Security, a Participant in the Clearing Agency or other Person
with respect to the accuracy of the records of the Clearing Agency or its
nominee or of any Participant thereof, with respect of any ownership interest in
the Preferred Securities or with respect to the delivery of any Participant,
beneficial owner or other Person (other than the Clearing Agency) of any notice
(including any notice of redemption) or the payment of any amount, under or with
respect to such Preferred Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders under the Preferred
Securities shall be given or made only to or upon the order of the registered
Holders (which shall be the Clearing Agency or its nominee in the case of a
Global Preferred Security). The rights of beneficial owners in any Global
Preferred Security shall be exercised only through the Clearing Agency subject
to the applicable rules and procedures of the Clearing Agency. The Preferred
Trustee may conclusively rely and shall be fully protected in relying upon
information
29
furnished by the Clearing Agency or any agent thereof with respect to its
Participants and any beneficial owners.
The Preferred Trustee and Securities Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer imposed under this Declaration or under applicable law
with respect to any transfer of any interest on any Preferred Security
(including any transfers between or among Clearing Agency Participants or
beneficial owners on any Global Preferred Security) other than to require
delivery of such certificates and other documentation or evidence as are
required by, and to do so if and when expressly required by law, the terms of
this Declaration, and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
(j) Minimum Transfers. Preferred Securities may only be
transferred in minimum blocks of $100,000 aggregate Liquidation Amount until
such Preferred Securities are registered pursuant to an effective registration
statement filed under the Securities Act or are "unrestricted" pursuant to Rule
144 under the Securities Act.
Section 5.7. Temporary Securities.
(a) Until definitive Trust Securities are ready for delivery,
a Company Trustee on behalf of the Trust may prepare and, in the case of the
Preferred Securities, the Preferred Trustee shall authenticate temporary
Securities (the "Temporary Securities"). Temporary Securities shall be
substantially in the form of definitive Trust Securities but may have variations
that the Trust considers appropriate for temporary Trust Securities. Without
unreasonably delay, a Company Trustee on behalf of the Trust shall prepare, and
in the case of the Preferred Securities, the Preferred Trustee shall
authenticate definitive Securities in exchange for Temporary Securities.
(b) A Global Preferred Security deposited with the Clearing
Agency or with the Preferred Trustee as custodian for the Clearing Agency
pursuant to Section 5.4 shall be transferred to the beneficial owners thereof in
the form of certificated Preferred Securities only if such transfer complies
with Section 5.6 and (i) the Clearing Agency notifies the Company that it is
unwilling or unable to continue as Clearing Agency for such Global Preferred
Security or if at any time such Clearing Agency ceases to be a "clearing agency"
registered under the Exchange Act and a clearing agency is not appointed by the
Sponsor within 90 days of such notice, (ii) a Declaration Event of Default has
occurred and is continuing or (iii) the Trust at its sole discretion elects to
cause the issuance of certificated Preferred Securities.
(c) Any Global Preferred Security that is transferable to the
beneficial owners thereof in the form of certificated Preferred Securities
pursuant to this Section 5.7 shall be surrendered by the Clearing Agency to the
Preferred Trustee located in Wilmington, Delaware, to be so transferred, in
whole or from time to time in part, without charge, and the Preferred Trustee
shall authenticate and make available for delivery, upon such transfer of each
portion of such Global Preferred Security, an equal aggregate Liquidation Amount
of Securities of authorized denominations in the form of certificated Preferred
Securities. Any portion of Global Preferred Security also transferred pursuant
to this Section shall be registered in such names as the Clearing Agency shall
direct. Any Preferred Security in the form of certificated Preferred Security
also
30
delivered in exchange for an interest in the Restricted Global Preferred
Security shall, except as otherwise provided by Sections 5.4 and 5.5, bear the
Restricted Securities Legend set forth in Exhibit D hereto.
(d) Subject to the provisions of Section 5.7(c), the Holder of
a Global Preferred Security may grant proxies and otherwise authorize any
Person, including Participants and Persons that may hold interests through
Participants, to take any action which such Holder is entitled to take under
this Declaration or the Trust Securities.
(e) In the event of the occurrence of any of the events
specified in Section 5.7(b), the Trust will promptly make available to the
Preferred Trustee a reasonable supply of certificated Preferred Securities in
fully registered form without Distribution coupons.
Section 5.8. Securities Register and Securities Registrar.
The Sponsor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which the
registrar designated by the Sponsor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Preferred Trustee shall be the
initial Securities Registrar.
Section 5.9. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Company Trustees such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Company Trustees, or any one of them, on behalf of the Trust, shall execute
and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Company Trustees or the Securities Registrar may require the payment of a sum
sufficient to pay any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
Section 5.10. Persons Deemed Securityholders.
The Company Trustees or the Securities Registrar shall treat the Person
in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities Certificate for the
purpose of receiving distributions and for all other purposes
31
whatsoever, and neither the Company Trustees nor the Securities Registrar shall
be bound by any notice to the contrary.
Section 5.11. Access to List of Securityholders' Names and Addresses.
Each Holder of a Trust Securities Certificate, and each Owner shall be
deemed to have agreed not to hold the Sponsor, the Preferred Trustee, the
Delaware Trustee or the Company Trustees accountable by reason of the disclosure
of its name and address, regardless of the source from which such information
was derived.
Section 5.12. Maintenance of Office or Agency.
The Company Trustees shall maintain an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Company Trustees initially designate Wilmington Trust Company, 1100 North Market
Street, Rodney Square North, Wilmington, Delaware, Attention: Corporate Trust
Administration, as its principal corporate trust office for such purposes. The
Company Trustees shall give prompt written notice to the Sponsor and to the
Securityholders of any change in the location of the Securities Register or any
such office or agency.
Section 5.13. Appointment of Paying Agent.
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Preferred Trustee and the Company Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the distributions referred to above. The Company Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Declaration in any material respect. The Paying Agent shall initially
be the Bank, and any co-paying agent chosen by the Bank, and acceptable to the
Company Trustees and the Sponsor. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Company
Trustees, the Preferred Trustee and the Sponsor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Company Trustees shall appoint a successor
that is acceptable to the Preferred Trustee and the Sponsor to act as Paying
Agent (which shall be a bank or trust company). The Company Trustees shall cause
such successor Paying Agent or any additional Paying Agent appointed by the
Company Trustees to execute and deliver to the Trustees an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the Securityholders
in trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Preferred Trustee, and upon removal of a Paying Agent
such Paying Agent shall return all funds in its possession to the Preferred
Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Bank also in its role as Paying Agent, for so long as the Bank shall act as
Paying Agent and, to the extent applicable, to any other Paying Agent appointed
32
hereunder. Any reference in this Declaration to the Paying Agent shall include
any co-paying agent unless the context requires otherwise.
Section 5.14. Ownership of Common Securities by Sponsor.
On the Closing Date, the Sponsor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, other than a transfer in connection with a consolidation or merger of
the Sponsor into another Person, or any conveyance, transfer or lease by the
Sponsor of its properties and assets substantially as an entirety to any Person,
pursuant to Section 8.1 of the Indenture, any attempted transfer of the Common
Securities shall be void. The Company Trustees shall cause each Common
Securities Certificate issued to the Sponsor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE DECLARATION."
Section 5.15. Rights of Securityholders.
(a) The legal title to the Trust Property is vested
exclusively in the Preferred Trustee (in its capacity as such) in accordance
with Section 2.9, and the Securityholders shall not have any right or title
therein other than the undivided beneficial ownership interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein, in this Declaration and
in the Delaware Business Trust Act. The Trust Securities shall have no
preemptive or similar rights and when issued and delivered to Securityholders
against payment of the purchase price therefor will be fully paid and
nonassessable by the Trust. The Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware without giving effect
to principles of conflict of laws.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Declaration Event of Default, the Indenture Trustee
fails or the holders of not less than 25% in principal amount of the outstanding
Notes fail to declare the principal of all of the Notes to be immediately due
and payable, the Preferred Trustee shall have such right by a notice in writing
to the Sponsor and the Indenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Notes shall become
immediately due and payable, provided, that the payment of principal and
interest on such Notes shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with
respect to the Notes has been made and before a judgment or decree for payment
of the money due has been obtained by the Indenture Trustee as provided in the
Indenture, the Holders of a majority in Liquidation Amount of the Preferred
Securities, by written notice to the Preferred Trustee, the Sponsor and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Sponsor has paid or deposited with the
Indenture Trustee a sum sufficient to pay:
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(A) all overdue installments of interest
on all of the Notes,
(B) the principal of (and premium, if
any, on) any Notes which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Notes, and
(C) all sums paid or advanced by the
Indenture Trustee under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, the Preferred Trustee and
the Delaware Trustee, their agents and counsel; and
(ii) any Note Event of Default, other than the
non-payment of the principal of the Notes which has become due solely by such
acceleration, has been cured or waived as provided in Section 5.13 of the
Indenture.
In the case of any Declaration Event of Default, the Holder of
Common Securities will be deemed to have waived any such Declaration Event of
Default under this Declaration until all such Declaration Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Declaration Events of Default with respect to the
Preferred Securities have been so cured, waived or otherwise eliminated, the
Trustees shall act solely on behalf of the Holders of Preferred Securities and
not the Holder of the Common Securities, and only the Holders of Preferred
Securities will have the right to direct the Trustees to act on their behalf.
The Holders of a majority in aggregate Liquidation Amount of
the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Indenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Note. No such rescission shall affect any subsequent default or impair any right
consequent thereon. The Preferred Trustee shall not, as the initial holder of
the Notes, for so long as it holds such Notes, waive any Note Event of Default
without the consent of Holders of a majority in aggregate Liquidation Amount of
Preferred Securities then Outstanding.
A waiver of a Note Event of Default will constitute a waiver
of the corresponding Declaration Event of Default.
Upon receipt by the Preferred Trustee of written notice
declaring such rescission and annulment by Holders of Preferred Securities all
or part of which is represented by Book- Entry Preferred Securities
Certificates, a record date shall be established for determining Holders of
Outstanding Preferred Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Preferred Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of rescission and annulment shall have become effective by virtue of
the requisite percentage having joined in such notice prior to the day which is
90 days after such
34
record date, such notice of declaration of rescission and annulment shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of rescission and annulment that is identical to a written
notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 5.15(c).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Declaration and the Indenture, if a Declaration Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Sponsor to pay interest on or principal of the Notes on the date such interest
or principal is otherwise payable (or in the case of redemption, the redemption
date), then the Holders of at least 25% in Liquidation Amount of the Outstanding
Preferred Securities shall have the right to appoint a trustee (the "Special
Trustee") to act on behalf of all Holders of Preferred Securities. The Special
Trustee so appointed shall represent the Holders of all Outstanding Preferred
Securities unless Holders of at least a majority in Liquidation Amount of the
Outstanding Preferred Securities appoint an alternative Special Trustee, in
which case the Special Trustee appointed in accordance with the preceding
sentence shall resign as Special Trustee. At no time can there be more than one
Special Trustee acting on behalf of the Holders of Preferred Securities. To the
fullest extent permitted by law, the Special Trustee shall have the right to
directly institute a proceeding against the Sponsor (a "Trustee Action") for
enforcement of payment to Holders of Preferred Securities of the principal of or
interest on the Notes having a principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities of such Holders. In connection
with any such Trustee Action, the rights of the Holder of the Common Securities
will be subrogated to the rights of any Holder of Preferred Securities to the
extent of any payment made by the Sponsor to such Holder of Preferred Securities
as a result of such Trustee Action. Except as set forth in Sections 5.15(b) and
(c), the Holders of Preferred Securities shall have no right to exercise
directly any right or remedy available to the holders of, or in respect of, the
Notes; provided, however, that if the Preferred Trustee or the Special Trustee
do not enforce such payment obligations, a Holder of Preferred Securities will,
to the fullest extent permitted by law, have the right to bring an action on
behalf of the Trust to enforce the Trust's rights under the Notes and the
Indenture.
(d) Upon the occurrence of a Change of Control Triggering
Event, each Holder of Preferred Securities shall have the right to require that
the Trust exchange Preferred Securities for Notes having an aggregate principal
amount equal to the aggregate liquidation amount of the Preferred Securities to
be exchanged. The Sponsor shall immediately redeem any Preferred Securities so
exchanged at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase.
35
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.15, 8.10
and 10.2 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) Subject to the requirement of the Preferred Trustee
obtaining an Opinion of Counsel in certain circumstances set forth in the last
sentence of this paragraph, Holders of a majority in Liquidation Amount of all
Outstanding Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Preferred
Trustee (or Special Trustee, if appointed), or direct the exercise of any trust
or power conferred upon the Preferred Trustee under this Declaration including
the right to direct the Preferred Trustee, as holder of the Notes, to (i)
exercise the remedies available under the Indenture with respect to the Notes,
(ii) waive any past Event of Default that is waiveable under the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Notes shall be due and payable or (iv) consent to any amendment,
modification, or termination of the Indenture or the Notes where such consent
shall be required; provided, however, that, where a consent or action under the
Indenture would require the consent or act of the holders of more than a
majority of the aggregate principal amount of Notes affected thereby, only
Holders of the percentage of the Liquidation Amount of all Outstanding Preferred
Securities which is at least equal to the percentage required under the
Indenture may direct the Preferred Trustee to give such consent or take such
action. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. If the Preferred Trustee
or the Special Trustee fails to enforce its rights under the Notes to receive
interest or principal on the Notes on the date such interest or principal is
otherwise payable (or in the case of redemption, the redemption date), a Holder
of Preferred Securities may, to the fullest extent permitted by law, institute a
legal proceeding on behalf of the Trust against the Sponsor to enforce the
Trust's rights under the Notes without first instituting any legal proceeding
against the Preferred Trustee or any other Person. Holders of Preferred
Securities shall not be able to exercise directly any other remedies available
to the holder of the Notes unless the Preferred Trustee or the Indenture
Trustee, acting for the benefit of the Preferred Trustee, fail to do so. In such
event, Holders of at least 25% in Liquidation Amount of all Outstanding
Preferred Securities shall, to the fullest extent permitted by law, have a right
to institute such proceedings. The Preferred Trustee shall notify all Holders of
Preferred Securities of any notice of default received from the Indenture
Trustee with respect to the Notes. Such notice shall state that such Event of
Default also constitutes a Declaration Event of Default. Except with respect to
directing the time, method and place of conducting a proceeding for a remedy,
the Preferred Trustee shall not take any of the actions described in clause (i),
(ii) or (iii) above unless the Preferred Trustee has obtained an Opinion of
Counsel rendered by a law firm having a tax and securities practice to the
effect that, as a result of such action, the Trust will not fail to be
36
classified as a grantor trust for United States federal income tax purposes or
another entity which is not subject to United States federal income tax at the
entity level and the assets and income of which are treated for United States
federal income tax purposes as held and derived directly by holders of interests
in the entity.
(c) In the event the consent of the Preferred Trustee, as the
holder of the Notes, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture, the Preferred Trustee
shall request the direction of the Holders of Preferred 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 all Outstanding Preferred Securities; provided, however,
that, where a consent under the Indenture would require the consent of the
holders of more than a majority of the aggregate principal amount of the Notes,
the Preferred Trustee may only give such consent at the direction of the Holders
of at least the same proportion in Liquidation Amount of all Outstanding
Preferred Securities. The Preferred Trustee shall not take any such action in
accordance with the directions of the Holders of Preferred Securities unless the
Preferred Trustee has obtained an Opinion of Counsel rendered by a law firm
having an independent tax and securities practice experienced in such matters to
the effect that, as a result of such action, the Trust will not fail to be
classified as a grantor trust or another entity which is not subject to United
States federal income tax at the entity level and the assets and income of which
are treated for United States federal income tax purposes as held and derived
directly by holders of interests in the entity.
(d) If any proposed amendment to the Declaration pursuant to
Section 10.2 provides for, or the Trustees or the Sponsor otherwise propose to
effect, (i) any action that would adversely affect in any material respect the
powers, preferences or special rights of the Trust Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the dissolution, winding-up
or termination of the Trust, other than pursuant to the terms of this
Declaration, then the Holders of the Trust Securities voting together as a
single class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of the
Holders of at least a majority in Liquidation Amount of the Trust Securities
affected thereby; provided, that if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or 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 at least a majority in Liquidation Amount of such
class of Trust Securities.
(e) Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described herein, any
of the Preferred Securities that are owned at such time by the Sponsor or any
entity directly or indirectly controlling or controlled by, or under direct or
indirect common control with, the Sponsor, shall not be entitled to vote or
consent and shall, for purposes of such vote or consent, be treated as if such
Preferred Securities were not Outstanding.
(f) Holders of Preferred Securities have no rights to appoint
or remove, or increase or decrease the number of, the Trustees, who may be
appointed, removed or replaced, increased or decreased solely by the Sponsor as
the indirect or direct Holder of all of the Common
37
Securities. No vote or consent of the Holders of Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or distribute
Notes in accordance with the Declaration.
Section 6.2. Notice of Meetings.
Notice of all meetings at which the Preferred Securities
Securityholders are entitled to vote, or of all matters upon which action by
written consent of the Preferred Securities Securityholders is to be taken,
shall be given by the Preferred Trustee pursuant to Section 10.8 to each
Preferred Securities Securityholder of record, at his registered address, at
least 15 days and not more the 90 days before the meeting. Each such notice
shall include a statement setting forth the following information: (i) the date,
place and purpose of such meeting or the date by which such action is to be
taken and the purpose thereof; (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. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. No vote or consent of the Holders of Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or distribute
Notes in accordance with this Declaration. Any adjourned meeting may be held as
adjourned without further notice.
Section 6.3. Meetings of Preferred Securities Securityholders.
Any required 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 Trust Securities or
pursuant to written consent. No annual meeting of Securityholders is required to
be held. The Company Trustees, however, shall call a meeting of Securityholders
to vote on any matter upon the written request of the Preferred Securities
Securityholders of record of 25% of the Preferred Securities (based upon their
Liquidation Amount) and the Company Trustees or the Preferred Trustee may, at
any time in their discretion, call a meeting of Preferred Securities
Securityholders to vote on any matters as to which Preferred Securities
Securityholders are entitled to vote.
Preferred Securities Securityholders of record of 50% of the
Outstanding Preferred Securities (based upon their Liquidation Amount), present
in person or by proxy, shall constitute a quorum at any meeting of
Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securities Securityholders of record present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon their
Liquidation Amount) held by the Preferred Securities Securityholders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Securityholders, unless this Declaration requires a greater number
of affirmative votes.
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $1,000.00 of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
38
Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided, that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Company Trustees, or with such
other officer or agent of the Trust as the Company Trustees may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Preferred Trustee, proxies may be solicited in the name of the
Preferred Trustee or one or more officers of the Preferred Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several Persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding a majority of all Outstanding
Trust Securities (based upon their Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Declaration) shall consent to the action in
writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution of the Trust Securities in respect of which a record date is
not otherwise provided for in this Declaration, or for the purpose of any other
action, the Company Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of a
distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Declaration to be given, made or
taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to a Company Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
39
for any purpose of this Declaration and (subject to Section 8.1) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the Company
Trustees or among such Securityholders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article VI, then the determination of such matter by the Preferred Trustee
shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Company Trustees and the Preferred
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
40
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Bank, the Preferred
Trustee and the Delaware Trustee.
The Preferred Trustee and the Delaware Trustee, each severally on
behalf of and only as to itself, hereby represents and warrants for the benefit
of the Sponsor, the Company Trustees and the Securityholders that:
(a) the Preferred Trustee is a Delaware banking corpor-
ation duly organized, validly existing and in good standing under the laws of
the State of Delaware;
(b) the Preferred Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Declaration and has taken all necessary action to authorize the execution,
delivery and performance by it of this Declaration;
(c) the Delaware Trustee is a Delaware banking corpor-
ation duly organized, validly existing and in good standing in the State of
Delaware;
(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Declaration and has taken all necessary action to authorize the execution,
delivery and performance by it of this Declaration;
(e) this Declaration has been duly authorized, executed and
delivered by the Preferred Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Preferred Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this
Declaration by the Preferred Trustee and the Delaware Trustee has been duly
authorized by all necessary corporate or other action on the part of the
Preferred Trustee and the Delaware Trustee and does not require any approval of
stockholders, of the Preferred Trustee or the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-Laws
of the Preferred Trustee or the Delaware Trustee, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties including in
the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the
Preferred Trustee or the Delaware Trustee is a party or by which it is bound, or
(iii) violate any law, governmental rule or regulation of the United States or
the State of Delaware, as the case may be, governing the banking, trust or
general powers of the Preferred Trustee or the Delaware Trustee (as appropriate
in context) or any order, judgment or decree applicable to the Preferred Trustee
or the Delaware Trustee;
41
(g) neither the authorization, execution or delivery by the
Preferred Trustee or the Delaware Trustee of this Declaration nor the
consummation of any of the transactions by the Preferred Trustee or the Delaware
Trustee (as appropriate in context) contemplated herein or therein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to (i) any governmental authority or
agency under any existing federal or Delaware law governing the banking, trust
or general powers of the Preferred Trustee, (ii) with respect to any
governmental authority or agency under any existing federal or Delaware law
governing the banking, trust or general powers of the Delaware Trustee (in each
case, other than (a) the qualification of this Declaration, the Indenture and
the Company Guarantee under the Trust Indenture Act, and (b) the filing of the
Certificate of Trust as required under the Delaware Business Trust Act); and
(h) there are no proceedings pending or, to the best of each
of the Preferred Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Preferred Trustee or the Delaware Trustee in any court
or before any governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would materially and adversely affect
the Trust or would question the right, power and authority of the Preferred
Trustee or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Trustees under this Declaration.
Section 7.2. Representations and Warranties of Sponsor.
The Sponsor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of
Delivery on behalf of the Trust have been duly authorized and will have been
duly and validly executed, issued and delivered by the Trustees pursuant to the
terms and provisions of, and in accordance with the requirements of, this
Declaration and the Securityholders will be, as of each such date, entitled to
the benefits of this Declaration; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Preferred Trustee or the Delaware
Trustee, as the case may be, of this Declaration.
ARTICLE VIII
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Declaration and no implied covenants shall be read into this
Declaration. Notwithstanding the foregoing, no provision of this Declaration
shall require the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties hereunder, or
in the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not
42
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Declaration relating to the conduct or affecting the liability
of or affording protection to the Trustees shall be subject to the provisions of
this Section. The Delaware Trustee shall have no liability under this
Declaration except for its gross negligence or willful misconduct. To the extent
that, at law or in equity, a Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, such
Trustee shall not be liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of the Trustees otherwise existing at law or in equity, are agreed
by the Sponsor and the Securityholders to replace such other duties and
liabilities of the Trustees.
(b) All payments made by the Preferred Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Preferred
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.1(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Declaration or, in the case of the
Preferred Trustee, in the Trust Indenture Act.
(c) No provision of this Declaration shall be construed to
relieve the Preferred Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Preferred Trustee shall not be liable
for any error of judgment made in good faith by an authorized officer of the
Preferred Trustee, unless it shall be proved that the Preferred Trustee was
negligent in ascertaining or failing to ascertain the pertinent facts;
(ii) the Preferred Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a majority in
Liquidation Amount of the Trust Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the Preferred
Trustee, or exercising any trust or power conferred upon the Preferred Trustee
under this Declaration;
(iii) the Preferred Trustee's sole duty with
respect to the custody, safe keeping and physical preservation of the Notes and
the Payment Account shall be to deal with such Trust Property in a similar
manner as the Preferred Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Preferred Trustee under this Declaration and the Trust Indenture Act;
(iv) the Preferred Trustee shall not be liable
for any interest on any money received by it except as it may otherwise agree
with the Sponsor; and money held by the Preferred Trustee need not be segregated
from other funds held by it except in relation to the Payment Account maintained
by the Preferred Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
43
(v) the Preferred Trustee shall not be respon-
sible for monitoring the compliance by the Company Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the Preferred Trustee
be liable for the default or misconduct of the Company Trustees or the Sponsor.
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Declaration Event
of Default actually known to an officer in the Corporate Trust Administration
office of the Preferred Trustee, the Preferred Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such Declaration
Event of Default to the Securityholders, the Company Trustees, the Delaware
Trustee and the Sponsor, unless such Declaration Event of Default shall have
been cured or waived.
Within ninety days after the receipt of notice of the Sponsor's
exercise of its right to defer the payment of interest on the Notes pursuant to
the Indenture, the Company Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the Securityholders,
the Delaware Trustee and the Preferred Trustee, unless such exercise shall have
been revoked.
Section 8.3. Certain Rights of Preferred Trustee.
Subject to the provisions of Section 8.1:
(a) the Preferred Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificates, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) If (i) in performing its duties under this Declaration the
Preferred Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions of this Declaration the Preferred
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Preferred Trustee is unsure of the application of
any provision of this Declaration, then, except as to any matter as to which the
Preferred Securities Securityholders are entitled to vote under the terms of
this Declaration, the Preferred Trustee shall deliver a notice to the Sponsor
requesting written instructions of the Sponsor as to the course of action to be
taken and the Preferred Trustee shall take such action, or refrain from taking
such action, as the Preferred Trustee shall be instructed in writing to take, or
to refrain from taking, by the Sponsor; provided, however, that if the Preferred
Trustee does not receive such instructions of the Sponsor within ten Business
Days after it has delivered such notice, or such reasonably shorter period of
time set forth in such notice (which to the extent practicable shall not be less
than five Business Days), it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Declaration as it shall deem
advisable and in the best interests of the Securityholders, in which event the
Preferred Trustee shall have no liability except for its own bad faith,
negligence or wilful misconduct;
44
(c) any direction or act of the Sponsor or the Company
Trustees contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Declaration, the
Preferred Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Preferred Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Sponsor or the
Company Trustees;
(e) the Preferred 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 re-registration thereof;
(f) the Preferred Trustee may consult with counsel (which
counsel may be counsel to the Sponsor or any of its Affiliates, and may include
any of its employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Preferred Trustee shall have the right at any time to seek
instruction concerning the administration of this Declaration from any court of
competent jurisdiction;
(g) the Preferred Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at the
request or direction of any of the Securityholders pursuant to this Declaration,
unless such Securityholders shall have offered to the Preferred Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(h) the Preferred Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by one or more
Securityholders;
(i) the Preferred Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, provided, that the Preferred Trustee shall be
responsible for its own negligence or recklessness with respect to the selection
of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Declaration the
Preferred Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder the
Preferred Trustee (i) may request instructions from the Holders of the Trust
Securities which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be entitled to
direct the Preferred Trustee under the terms of the Trust Securities in respect
of such remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received, and
(iii) shall be protected in action in accordance with such instructions; and
45
(k) except as otherwise expressly provided by this
Declaration, the Preferred Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration.
No provision of this Declaration shall be deemed to impose any
duty or obligation on the Preferred 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 Preferred 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 Preferred Trustee
shall be construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Sponsor of the proceeds of the Notes.
Section 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, any Trustee or any other agent of any Trustee of the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
Pursuant to Section 10.18 of the Indenture, the Sponsor, in its
capacity as issuer of the Notes, agrees:
(a) to pay the Trustee from time to time reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Declaration (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence (or, in the case of the
Delaware Trustee, gross negligence) or bad faith;
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent of
any Trustee, and (iv) any employee or agent of the Trust or its Affiliates
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation, dissolution, winding-up or termination
46
of the Trust or any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of its negligence (or, in the case of the
Delaware Trustee and its related Indemnified Persons, gross negligence) or
willful misconduct with respect to such acts or omissions; and
(d) to the fullest extent permitted by applicable law, to
advance expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Sponsor of (i) a written affirmation by or on behalf of the Indemnified
Person of its or his good faith belief that it or he has met the standard of
conduct set forth in this Section 8.6 and (ii) an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in the
preceding subsection.
The provisions of this Section 8.6 shall survive the termination of
this Declaration and of the Trust.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6.
The Sponsor and any Trustee (subject to Section 8.8) 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 Trust 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. Neither the Sponsor, nor any 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 the Sponsor or any Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any 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 depository 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.
Section 8.7. Corporate Preferred Trustee Required; Eligibility of
Trustees.
(a) There shall at all times be a Preferred Trustee hereunder
with respect to the Trust Securities. The Preferred Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Preferred Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the
47
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Company Trustees
hereunder with respect to the Trust Securities. Each Company Trustee shall be
either a natural person who is at least 21 years of age or a legal entity that
shall act through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
Section 8.8. Conflicting Interests.
If the Preferred Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Preferred Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Declaration.
Section 8.9. Co-Trustees and Separate Trustee.
Unless a Declaration Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Sponsor and the Company
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Company Trustees, the Sponsor shall
for such purpose join with the Company Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Preferred Trustee either to act as
co-trustee, jointly with the Preferred Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Sponsor does not join in
such appointment within 15 days after the receipt by it of a request so to do,
or in case a Declaration Event of Default has occurred and is continuing, the
Preferred Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section shall either
be (i) a natural person who is at least 21 years of age and a resident of the
United States or (ii) a legal entity with its principal place of business in the
United States that shall act through one or more persons authorized to bind such
entity.
Should any written instrument from the Sponsor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Sponsor.
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Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and
all rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Preferred Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Preferred Trustee or by the Preferred Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the extent that under
any law of any jurisdiction in which any particular act is to be performed, the
Preferred Trustee shall be incompetent or unqualified to perform such act, in
which event such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) The Preferred Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Sponsor, may accept
the resignation of or remove any co-trustee or separate trustee appointed under
this Section, and, in case a Declaration Event of Default has occurred and is
continuing, the Preferred Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the Sponsor. Upon the written request of the Preferred Trustee, the Sponsor
shall join with the Preferred Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Preferred Trustee or
any other trustee hereunder.
(e) The Preferred Trustee shall not be liable by reason
of any act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Preferred Trustee
shall be deemed to have been delivered to each such co-trustee and separate
trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Securityholders,
the Sponsor and the other Trustees. If the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of
49
resignation, the Relevant Trustee may petition, at the expense of the Trust, any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
Unless a Declaration Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securities Securityholder. If a Declaration Event of Default shall have occurred
and be continuing, the Preferred Trustee or the Delaware Trustee, or both of
them, may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). A Company
Trustee may be removed by the Common Securities Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for any
cause, at a time when no Declaration Event of Default shall have occurred and be
continuing, the Common Securities Securityholder, by Act of the Common
Securities Securityholder delivered to the retiring Trustee, shall promptly
appoint a successor Trustee or Trustees, and the retiring Trustee shall comply
with the applicable requirements of Section 8.11. If the Preferred Trustee or
the Delaware Trustee shall resign, be removed or become incapable of continuing
to act as the Preferred Trustee or the Delaware Trustee, as the case may be, at
a time when a Declaration Event of Default shall have occurred and be
continuing, the Preferred Securities Securityholders, by Act of the
Securityholders of a majority in Liquidation Amount of the Preferred Securities
then Outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor Trustee
shall comply with the applicable requirements of Section 8.11. If a Company
Trustee shall resign, be removed or become incapable of acting as Company
Trustee, at a time when a Declaration Event of Default shall have occurred and
be continuing, the Common Securities Securityholder by Act of the Common
Securities Securityholder delivered to the Company Trustee shall promptly
appoint a successor Company Trustee or Company Trustees and such successor
Company Trustee or Trustees shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been so appointed by
the Common Securities Securityholder or the Preferred Securities Securityholders
or if one has been appointed but has not accepted the appointment in the manner
required by Section 8.11, any Securityholder who has been a Securityholder of
Trust Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Preferred Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Sponsor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Preferred
Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration, in the event any Company Trustee or a Delaware Trustee who is a
natural person dies or becomes, in the opinion of the Sponsor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of remaining Company Trustees if there are at
least two of them or (b) otherwise by the Sponsor (with the successor in each
case being a
50
Person who satisfies the eligibility requirement for Company Trustees or
Delaware Trustee, as the case may be, set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the Trust Securities shall execute and deliver an amendment hereto wherein
each successor Relevant Trustee shall accept such appointment and which (a)
shall contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Declaration as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Preferred Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such 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.
Section 8.13. Preferential Collection of Claims Against Sponsor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Preferred Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or
51
otherwise and irrespective of whether the Preferred Trustee shall have made any
demand on the Trust for the payment of any past due Distribution) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Preferred Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Preferred Trustee, its
agent and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Preferred Trustee and, in the event the
Preferred Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Preferred Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Preferred Trustee, its
agents and counsel, and any other amounts due to the Preferred Trustee.
Nothing herein contained shall be deemed to authorize the Preferred
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder thereof or to authorize the
Preferred Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.14. Reports by Preferred Trustee.
(a) Not later than April 15 of each year commencing with April
15, 1998, the Preferred Trustee shall transmit to all Securityholders in
accordance with Section 10.8, and to the Sponsor, a brief report dated as of the
preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in
lieu thereof, if to the best of its knowledge it has continued to be eligible
under said Section, a written statement to such effect;
(ii) a statement that the Preferred Trustee has
complied with all of its obligations under this Declaration during the
twelve-month period (or, in the case of the initial report, the period since the
Closing Date) ending with the preceding December 31 or, if the Preferred Trustee
has not complied in any material respect with such obligations, a description of
such noncompliance; and
(iii) any change in the property and funds in its
possession as Preferred Trustee since the date of its last report and any action
taken by the Preferred Trustee in the performance of its duties hereunder which
it has not previously reported and which in its opinion materially affects the
Trust Securities.
52
(b) In addition the Preferred Trustee shall transmit to
Securityholders such reports concerning the Preferred Trustee and its actions
under this Declaration as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Preferred Trustee with the Commission
and with the Sponsor.
Section 8.15. Reports to the Preferred Trustee.
The Sponsor and the Company Trustees on behalf of the Trust shall
provide to the Preferred Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Company Trustees on behalf of the Trust
shall provide to the Preferred Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided, that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Company Trustees. The Preferred Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Company Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of
Company Trustees shall occur, until such vacancy is filled by the appointment of
a Company Trustee in accordance with Section 8.10, the Company Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Agreement), shall have all the powers granted to the Company Trustees and
shall discharge all the duties imposed upon the Company Trustees by this
Declaration.
Section 8.18. Delegation of Power.
(a) Any Company 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
53
executing any documents contemplated in Section 2.7(a), including any
registration statement or amendment thereto filed with the Commission, or making
any other governmental filing; and
(b) The Company Trustees shall have power to delegate from
time to time to such of their number or to the Sponsor the doing of such things
and the execution of such instruments either in the name of the Trust or the
names of the Company Trustees or otherwise as the Company Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Declaration, as set forth herein.
ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
Section 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on
August 15, 2047 (the "Expiration Date"), following the distribution of the Trust
Property in accordance with Section 9.4.
Section 9.2. Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event" and will cause a dissolution of the Trust:
(a) the occurrence of a Bankruptcy Event in respect of,
or the liquidation of, the Sponsor (or, in the case of a transfer pursuant to
Section 5.14 hereof, the Holder of Common Securities);
(b) the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor (or, in the case of a transfer pursuant
to Section 5.14 hereof, the Holder of Common Securities); or the revocation of
the charter or its equivalent of the Sponsor (or, in the case of a transfer
pursuant to Section 5.14 hereof, the Holder of Common Securities) and the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
(c) the entry of a decree of judicial dissolution of the
Sponsor (or, in the case of a transfer pursuant to Section 5.14 hereof, the
Holder of Common Securities) or the Trust by a court of competent jurisdiction;
(d) all of the Trust Securities shall have been called for
redemption and the Redemption Price shall have been paid to the Holders in
accordance with this Declaration;
(e) the distribution of all the Trust Property;
(f) the written direction to the Preferred Trustee from the
Sponsor at any time (which direction is optional and wholly within the
discretion of the Sponsor) to dissolve the Trust and distribute Notes to
Securityholders in exchange for the Preferred Securities;
54
(g) the redemption of all of the Preferred Securities in
connection with the redemption of all of the Notes;
(h) subject to Section 9.4(e), the occurrence of a Tax
Event; and
(i) the occurrence of an Investment Company Event.
Section 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Preferred Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Company Trustees, including the
performance of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in Section 9.2
(with the exception of clauses (d) and (g)) occurs or upon the Expiration Date,
the Trust shall be liquidated by the Preferred Trustee and the Company Trustees
as expeditiously as such Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, to each Securityholder a Like Amount of Notes, subject to
Section 9.4(d). Notice of liquidation shall be given by the Preferred Trustee by
first-class mail, postage prepaid mailed not later than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation
Date, the Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Notes; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates for Notes,
or if Section 9.4(d) applies receive a Liquidation Distribution, as the Company
Trustees or the Preferred Trustee shall deem appropriate.
(b) Except where Section 9.2(d), 9.2(g) or 9.4(d) applies, in
order to affect the liquidation of the Trust and distribution of the Notes to
Securityholders, the Preferred Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Notes in exchange for the Outstanding
Trust Securities Certificates.
55
(c) Except where Section 9.2(d), 9.2(g) or 9.4(d) applies,
after the Liquidation Date, (i) the Trust Securities will no longer be deemed to
be Outstanding, (ii) certificates representing a Like Amount of Notes will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the Company Trustees or their agent for exchange, (iii) any
Trust Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Notes, accruing interest at the rate provided for in
the Notes from the last Distribution Date on which a Distribution was made on
such Trust Securities Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
principal will be made to Holders of Trust Securities Certificates with respect
to such Notes) and (iv) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive Notes upon
surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of
this Section 9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Notes in the manner
provided herein is determined by the Preferred Trustee not to be practical, the
Trust Property shall be liquidated, and the Trust shall be wound-up and
terminated, by the Preferred Trustee in such manner as the Preferred Trustee
determines. In such event, on the date of the winding-up and termination of the
Trust, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such winding-up or termination, 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, subject
to the next succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holder of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that, if
a Declaration Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
(e) If the Early Termination Event specified in Section 9.2(h)
occurs, the Trust shall be liquidated within 90 days following the occurrence of
such Tax Event as provided in this Section 9.4; provided, however, that such
liquidation and distribution shall be conditioned on (i) the Trustees' receipt
of an Opinion of Counsel of an independent tax counsel experienced in such
matters ( a "No Recognition Opinion") which opinion may rely on published
revenue rulings of the Internal Revenue Service, to the effect that the Holders
of the Preferred Securities will not recognize any income, gain or loss for
United States federal income tax purposes as a result of such liquidation and
distribution of Notes, and (ii) the Sponsor being unable to avoid such Tax Event
within such 90-day period by taking some ministerial action or pursuing some
other reasonable measure that will have no adverse effect on the Trust, the
Sponsor or the Holders of the Preferred Securities and will involve no material
cost. If (i) the Sponsor has received an Opinion of Counsel (a "Redemption Tax
Opinion") of an independent tax counsel or advisors experienced in such matters
that, as a result of a Tax Event, there is more than an insubstantial risk that
the Sponsor would be precluded from deducting the interest on the Notes for
United States federal income tax purposes, even after the Notes were distributed
to the Holders of the Preferred Securities upon liquidation of the Trust as
provided above, or (ii) the Trustees
56
shall have been informed by such tax counsel that it cannot deliver a No
Recognition Opinion, the Sponsor has the right to redeem the Notes in whole, in
which case all the Preferred Securities and Common Securities will be entitled
to receive the Liquidation Distribution; provided, however, that, if at the time
there is available to the Company or the Trust the opportunity to eliminate,
within such ninety-day period, the Tax Event by taking some ministerial action
or pursuing some other reasonable measure that will not have an adverse effect
on the Trust, the Company or the Holders of the Preferred Securities and will
involve no material cost, the Trust or the Company will pursue such measure in
lieu of redemption.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust.
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 pursuant to this Section 9.5
or Section 9.4. At the request of the Sponsor, with the consent of the Company
Trustees and without the consent of the Holders of Preferred Securities, the
Preferred Trustee or the Delaware Trustee, the Trust may consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to, a trust organized as
such under the laws of any state of the United States of America; provided, that
(i) if the Trust is not the survivor, such successor entity either (a) expressly
assumes all of the obligations of the Trust under the Trust Securities or (b)
substitutes for the Trust Securities other securities having substantially the
same terms as the Trust Securities (the "Successor Securities") as long as the
Successor Securities rank the same as the Trust Securities with respect to
Distributions and payments upon liquidation, redemption and otherwise, (ii) the
Sponsor expressly appoints a trustee of the successor entity that possesses the
same powers and duties as the Preferred Trustee as the holder of the Notes,
(iii) the Preferred Securities or any Successor Securities are listed or traded,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Trust Securities (including any Successor Securities) in any material respect,
(vi) such successor entity has a purpose substantially identical to that of the
Trust, (vii) the Sponsor has provided a guarantee to the holders of the
Successor Securities with respect to such successor entity having substantially
the same terms as the Company Guarantee, and (viii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Sponsor has received an Opinion of Counsel rendered by a law firm having a tax
and securities practice experienced in such matters to the effect that (x) such
successor entity will be treated as a grantor trust for United States federal
income tax purposes or otherwise as an entity that is not subject to United
States federal income tax at the entity level and the assets and income of which
are treated for United States federal income tax purposes as held and derived
directly by holders of interests in the entity, (y) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Sponsor nor such successor entity will be required to register as an
investment company under the 1940 Act and (z) such merger, consolidation,
amalgamation or replacement, conveyance, transfer or lease, will not adversely
affect the rights, preferences, privileges and limited liability of the
Preferred Securities in any material respect, and (ix) the Company Trustees
shall have
57
furnished the Preferred Trustee and the Delaware Trustee at least five Business
Days' prior written notice of the consummation of such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease; provided, however,
that the failure to provide such notice shall not affect the validity of any
such transaction. Notwithstanding the foregoing, the Trust shall not, except
with the consent of Holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, be replaced by, convey,
transfer or lease its properties and assets substantially as an entirety to any
other Person or permit any other Person to consolidate, amalgamate, merge with
or into or replace it, if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor entity to
be classified as other than a grantor trust for United States federal income tax
purposes or another entity which is not subject to United States federal income
tax at the entity level and the assets and income of which are treated for
United States federal income tax purposes as held and derived directly by
holders of interests in the entity.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Limitation of Rights of Securityholders.
The death, incapacity, bankruptcy, dissolution or termination of any
Person having an interest, beneficial or otherwise, in Trust Securities shall
not operate to terminate this Declaration, nor dissolve, terminate or annul the
Trust, nor entitle the legal representatives or heirs or successors of such
Person or any Securityholder for such Person, to claim an accounting, take any
action or bring any proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Declaration may be amended from time to time by the
Trustees and the Sponsor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Declaration, which shall
not be inconsistent with the other provisions of this Declaration, or (ii) to
modify, eliminate or add to any provisions of this Declaration to such extent as
shall be necessary to ensure that the Trust will be classified for United States
federal income tax purposes as a grantor trust or other entity which is not
subject to United States federal income tax at the entity level and the assets
and income of which are treated for United States federal income tax purposes as
held and derived directly by holders of interests in the entity at all times
that any Trust Securities are Outstanding or to ensure that the Trust will not
be required to register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any Securityholder, and any such
amendments of this Declaration shall become effective when notice thereof is
given to the Securityholders.
58
(b) If any proposed amendment provides for, or the Trustees or
the Sponsor otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Trust Securities,
whether by way of amendment to this Declaration or otherwise or (ii) the
dissolution, winding-up or termination of the Trust other than pursuant to the
terms of this Declaration, then the Securityholders voting together as a single
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 at least a
majority (based upon Liquidation Amounts) of the Trust Securities affected
thereby; provided, that if any amendment or proposal referred to in clause (i)
above would adversely affect only the Preferred Securities or 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 at least a majority (based on Liquidation Amounts)
of such class of Trust Securities; provided, further, that no amendment or
modification may be made to this Declaration if such amendment or modification
would (x) cause the Trust to be classified for purposes of United States federal
income taxation as other than a grantor trust or another entity which is not
subject to United States federal income tax at the entity level and the assets
and income of which are treated for United States federal income tax purposes as
held and derived directly by holders of interest in the entity, (y) reduce or
otherwise adversely affect the powers of the Trustees or (z) cause the Trust to
be deemed an investment company which is required to be registered under the
1940 Act.
(c) Except as provided in Section 10.2(b) and 10.2(d) hereof,
any provision of this Declaration may be amended by the Trustees and the Sponsor
with (i) the consent of Securityholders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status for United States federal
income tax purposes as a grantor trust or other entity which is not subject to
United States federal income tax at the entity level and the assets and income
of which are treated for United States federal income tax purposes as held and
derived directly by holders of interests in the entity, or cause the Trust to be
deemed an investment company which is required to register under the 1940 Act.
(d) In addition to and notwithstanding any other provision in
this Declaration, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
Declaration may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(e) Notwithstanding any other provisions of this Declaration,
no Trustee shall enter into or consent to any amendment to this Declaration
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified for purposes of United States federal income taxation as other than a
grantor trust or another entity which is not subject to United States federal
income tax at the
59
entity level and the assets and income of which are treated for United States
federal income tax purposes as held and derived directly by holders of interests
in the entity.
(f) Notwithstanding anything in this Declaration to the
contrary, without the consent of the Sponsor, this Declaration may not be
amended in a manner which imposes any additional obligation on the Sponsor.
(g) In the event that any amendment to this Declaration is
made, the Company Trustees shall promptly provide to the Sponsor a copy of such
amendment.
(h) Neither the Preferred Trustee nor the Delaware Trustee
shall be required to amend this Declaration in any manner which affects its own
rights, duties or immunities under this Declaration. The Preferred Trustee and
the Delaware Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Declaration is in
compliance with this Declaration.
Section 10.3. Separability.
In case any provision in this Declaration or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.4. Governing Law.
This Declaration and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Declaration and
the Trust Securities shall be construed in accordance with and governed by the
laws of the State of Delaware without giving effect to principles of conflict of
laws.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Sections 4.1(a) and (e) and 4.2(d) and (e)), with the same
force and effect as though made on the date fixed for such payment, and no
interest shall accrue thereon for the period after such date.
Section 10.6. Successors.
This Declaration shall be binding upon and shall inure to the benefit
of any successor to the Sponsor, the Trust or the Relevant Trustee, including
any successor by operation of law. Except in connection with a consolidation,
merger or sale involving the Sponsor that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Sponsor's obligations hereunder, the Sponsor shall not assign its obligations
hereunder.
60
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Declaration.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any
provision of this Declaration is required or permitted to be given or served to
or upon any Securityholder or the Sponsor may be given or served in writing by
deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Sponsor, to Symons International
Group, Inc., 4720 Kingsway Drive, Indianapolis, Indiana 46205, Attn: Chief
Executive Officer, facsimile no.: (317) 259-6395. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Declaration is required or permitted to be given or served to or upon the
Trust, the Preferred Trustee, the Delaware Trustee or the Company Trustees shall
be given in writing by deposit thereof, first-class postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed (until another address is published by the Trust) as follows: (a) with
respect to the Preferred Trustee and the Delaware Trustee to Wilmington Trust
Company, 1100 North Market Street, Rodney Square North, Wilmington, Delaware,
Attention: Corporate Trust Administration; and (b) with respect to the Company
Trustees, to them at the address above for notices to the Sponsor, marked
"Attention Company Trustees of SIG Capital Trust I." Such notice, demand or
other communication to or upon the Trust or the Preferred Trustee shall be
deemed to have been sufficiently given or made only upon actual receipt of the
writing by the Trust or the Preferred Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Sponsor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Sponsor takes action in violation of this Section 10.9, the
Preferred Trustee agrees, for the benefit of Securityholders, that at the
expense of the Sponsor, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Sponsor against
the Trust or the commencement of such action and raise the defense that the
Sponsor has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the Trustee
or the Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Declaration.
61
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Preferred Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Declaration by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Declaration modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Declaration as
so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 10.11. Acceptance of Terms of Declaration, Company Guarantee
and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE COMPANY
GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST,
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
DECLARATION SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
62
SYMONS INTERNATIONAL GROUP, INC.,
an Indiana corporation
By:__/s/ Alan G. Symons__________________
Name: Alan G. Symons
Title: Chief Executive Officer
WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as Preferred Trustee
By:__/s/ Emmett Harmon___________________
Name: Emmett Harmon
Title: Vice President
WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as Delaware Trustee
By:__/s/ Emmett Harmon__________________
Name: Emmett Harmon
Title: Vice President
__/s/ Alan G. Symons_____________________
Alan G. Symons, as Company Trustee
__/s/ Douglas H. Symons__________________
Douglas H. Symons, as Company Trustee
__/s/ Gary P. Hutchcraft________________
Gary P. Hutchcraft, as Company Trustee
63
EXHIBIT A
CERTIFICATE OF TRUST OF SIG CAPITAL TRUST I, Trustee
This Certificate of Trust of SIG Capital Trust I (the "Trust"), dated
as of August 4, 1997, is being duly executed and filed by Wilmington Trust
Company, a Delaware banking corporation, not in its individual capacity but
solely as trustee, and Alan G. Symons, not in his individual capacity but solely
as to form a business trust under the Delaware Business Trust Act (12 Del. C.
ss. 3801 et seq.)
1. Name. The name of the business trust formed hereby is SIG
Capital Trust I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust in the State of Delaware are Wilmington Trust Company, 1100
North Market Street, Rodney Square North, Wilmington, New Castle County,
Delaware 19890-0001.
3. Effective Date. This Certificate of Trust shall be effective
upon filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as trustee
By:_______________________________________
Name:
Title:
------------------------------------------
Alan G. Symons, not in his individual capacity
but solely as trustee
1
EXHIBIT B
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: Matt Whaley
General Counsel's Office
Re: SIG Capital Trust I 9 1/2% Trust Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to
the issuance and deposit with The Depository Trust Company ("DTC") of the SIG
Capital Trust I 9 1/2% Preferred Securities (the "Preferred Securities"), of SIG
Capital Trust I, a Delaware business trust (the "Trust"), created pursuant to a
Declaration of Trust dated as of August 4, 1997 of SIG Capital Trust I (the
"Declaration"). the payment of distributions on the Preferred Securities, to the
extent the Trust has funds legally available for the payment thereof are
guaranteed by Symons International Group, Inc. (the "Company") to the extent set
forth in a Guarantee Agreement dated August 12, 1997 by the Company with respect
to the Preferred Securities. The Company and the Trust propose to sell the
Preferred Securities to certain Initial Purchasers (the "Initial Purchasers")
pursuant to a Purchase Agreement dated August 7, 1997 by and among the Initial
Purchasers, the Trust and Symons International Group, Inc., and the Initial
Purchasers wish to take delivery of the Preferred Securities through DTC.
Wilmington Trust Company, the Preferred Trustee under the Declaration, is acting
as transfer agent and registrar with respect to the Preferred Securities (the
"Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for
deposit at DTC, and to act in accordance with DTC's rules with respect to the
Preferred Securities, the Trust, the Transfer Agent and Registrar and DTC agree
among each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to the
Initial Purchasers, which is expected to occur on or about August 12, 1997,
there shall be deposited with DTC one or more global certificates (individually
and collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of 130,000
Preferred Securities and bearing the following legend:
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
"Depository") or a nominee of the Depository. This Preferred
Security is exchangeable for Preferred Securities registered
in the name of a person other than the Depository 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
Depository to a nominee of
1
the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, New York) to SIG Capital Trust I 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 The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.
2. The Declaration provides for the voting by the holders of the
Preferred Securities under certain limited circumstances. The Trust shall
establish a record date for such purposes and shall, to the extent possible,
give DTC notice of such record date not less than 15 calendar days in advance of
such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Trust or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of a distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Trust or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Trust to holders of Preferred Securities or
published by or on behalf of the Trust (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The Trust
or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Trust or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
2
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Trust or the Transfer Agent and Registrar shall confirm DTC's
receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Trust of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Trust or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Trust or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred Securities, which, as of the date of this letter, is "SIG
Capital Trust I 9 1/2% Trust Preferred Securities".
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in next day funds on
each payment date (or in accordance with existing arrangements between the Trust
or the Transfer Agent and Registrar and DTC). Such payments shall be made
payable to the order of Cede & Co., and shall be addressed as follows:
3
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Trust and the Transfer
Agent and Registrar to use any other telecopy number or address of DTC as the
number or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Trust's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Trust or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving at least 90 days'
prior written notice to the Trust and the Transfer Agent and Registrar (at which
time DTC will confirm with the Trust or the Transfer Agent and Registrar the
aggregate number of Preferred Securities deposited with it) and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, the Trust may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Owner having
Preferred Securities credited to its DTC account, or issue definitive Preferred
Securities to the beneficial holders thereof, and in any such case, DTC agrees
to cooperate fully with the Trust and the Transfer Agent and Registrar, and to
return the Global Certificate, duly endorsed for transfer as directed by the
Trust or the Transfer Agent and Registrar, together with any other documents of
transfer reasonably requested by the Trust or the Transfer Agent and Registrar.
12. In the event that the Trust determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Trust or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Trust or the Transfer Agent and
Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Trust and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Trust or the Transfer
Agent and Registrar, together with any other documents of transfer reasonably
requested by the Trust or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Nothing herein shall be deemed to require the Transfer Agent and
Registrar to advance funds on behalf of SIG Capital Trust I.
4
Very truly yours,
SIG CAPITAL TRUST I
(as Trust)
By:_______________________________________________
____________________________, Company Trustee
WILMINGTON TRUST COMPANY, a Delaware banking
association
(As Transfer Agent and Registrar and not in its
individual capacity)
By: ______________________________________________
Name:_____________________________________________
Title:____________________________________________
WILMINGTON TRUST COMPANY, a Delaware banking
association
(As Preferred Trustee and not in its individual
capacity)
By: ______________________________________________
Name:_____________________________________________
Title:____________________________________________
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By: _________________________________
Authorized Officer
5
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE DECLARATION
FORM OF COMMON SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
THE COMMON SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS COMMON
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS COMMON SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS COMMON SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
"AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS COMMON SECURITY (OR ANY
PREDECESSOR OF THIS COMMON SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) SO LONG AS THIS COMMON SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE OF RULE 144A,
(D) PURSUANT TO OFFERS AND SALES TO NON-UNITED STATES PERSONS THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH
(A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING
THIS COMMON SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
TRUST AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (ii)
PURSUANT TO CLAUSE (E) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A
LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
MEMORANDUM DATED AUGUST 7, 1997. SUCH HOLDER FURTHER AGREES THAT
1
IT WILL DELIVER TO EACH PERSON TO WHOM THIS COMMON SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
SIG Capital Trust I
9 1/2% Common Securities
(liquidation amount $1,000.00 per Common Security)
SIG Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Symons
International Group, Inc. (the "Holder") is the registered owner of four
thousand one hundred and seventy-six (4,176) common securities of the Trust
representing beneficial ownership interest in the Trust and designated the 9
1/2% Common Securities (liquidation amount $1,000.00 per Common Security)(the
"Common Securities"). Except as provided in Section 5.5 of the Declaration (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Declaration of Trust of SIG Capital
Trust I dated as of August 12, 1997, 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 therein. The Trust will furnish a copy of the
Declaration to the Holder without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Company Trustees of the Trust has
executed this certificate this 12th day of August, 1997.
SIG CAPITAL TRUST I
By: ______________________________________________
Name:
Title: Company Trustee
2
FORM OF REVERSE OF SECURITY
Distributions payable on each Common Security will be fixed at a rate
per annum of 9 1/2% (the "Coupon Rate") of the Liquidation Amount of $1,000 per
Common Security, such rate being the rate of interest payable on the Notes to be
held by the Preferred Trustee. Distributions in arrears for more than one
semi-annual period will bear interest thereon compounded semi-annually 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 Notes held by the Preferred
Trustee and to the extent the Preferred Trustee has funds on hand legally
available therefor.
Distributions on the Common Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid from August 15, 1997 and will be payable
semi-annually in arrears on February 15 and August 15 of each year, commencing
on February 15, 1998, except as otherwise described below and in the
Declaration. Distributions will be computed on the basis of a 360-day year
constituting twelve 30- day months and, for any period of less than a full
calendar month, the number of days elapsed in such month. As long as no Event of
Default has occurred and is continuing under the Indenture, the issuer of the
Note ("Note Issuer") has the right under the Indenture to defer payments of
interest by extending the interest payment period at any time and from time to
time on the Notes for a period not exceeding 10 consecutive calendar semi-annual
periods (each an "Extension Period"), provided that no Extension Period shall
extend beyond the Maturity Date of the Notes. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, semi-annual
Distributions will continue to accumulate with interest thereon (to the extent
permitted by applicable law, but not at a rate exceeding the rate of interest
then accruing on the Notes) at the Coupon Rate compounded semi-annually during
any such Extension Period. Prior to the termination of any such Extension
Period, the Note Issuer may further defer payments of interest by further
extending such Extension Period, provided that such Extension Periods, together
with all such previous and further extensions within such Extension Period may
not exceed 10 consecutive semi-annual periods, including the first semi-annual
period during such Extension Period, or extend beyond the Maturity Date of the
Notes. Payments of Distributions that have accumulated during any Extension
Period will be payable to Holders as they appear on the books and records of the
Trust on the record date for the first scheduled Distribution payment date
following the expiration of such Extension Period. Upon the expiration of any
Extension Period and the payment of all amounts then due, the Note Issuer may
commence a new Extension Period, subject to the above requirements. Capitalized
terms used herein and not otherwise defined are used as defined in the
Declaration.
The Company Trustees shall, at the direction of the Sponsor, at any
time dissolve and liquidate the Trust and, after satisfaction of liabilities to
creditors of the Trust, cause the Notes to be distributed to the holders of the
Securities in liquidation of the Trust or simultaneously with any redemption of
the Notes, cause a Like Amount of the Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided in the
Declaration.
3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Common Securities 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 Securities
Certificate)
________________________________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and
credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17 Ad-15.
4
[Include the following if the Common Security bears a Restricted Securities
Legend]
In connection with any transfer of any of the Common Securities evidenced by
this certificate, the undersigned confirms that such Common Securities are
being:
Check one box below
(1) exchanged for the undersigned's own account without transfer;
or
(2) transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended; or
(3) transferred to an institutional "accredited investor" within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Securities Act of 1933, as amended, that is
acquiring the Preferred Securities for its own account, or for
the account of such an institutional "accredited investor,"
for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in violation of
the Securities Act of 1933, as amended; or
(4) transferred pursuant to another available exemption from the
registration Requirements of the Securities Act of 1933, as
amended; or
(5) transferred pursuant to an effective registration statement.
unless one of the boxes is checked, the Securities Registrar will refuse to
register any of the Common Securities evidenced by this certificate in the name
of any person other than the registered Holder thereof; provided, however, that
if box (3), (4) or (5) is checked, the Securities Registrar may require, prior
to registering any such transfer of the Common Securities such legal opinions,
certifications and other information as the trust has reasonably requested to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
of 1933, as amended, such as the exemption provided by Rule 144 under such Act;
provided, further, that (i) if box (2) is checked, the transferee must also
certify that it is a qualified institutional buyer as defined in Rule 144A or
(ii) if box (4) is checked, the transferee must also provide to the Securities
Registrar a Transferee Letter of Representation in the form attached to the
Offering Memorandum dated August 7, 1997.
Date: ____________________
Signature:__________________________________________________________________
(Sign exactly as your name appears on the other side of this Common Security)
5
EXHIBIT D
FORM OF PREFERRED SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS GLOBAL SECURITY IS A GLOBAL PREFERRED SECURITY INSERT: THIS PREFERRED
SECURITY IS A GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF THE DECLARATION
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING AGENCY. THIS
PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE CLEARING AGENCY 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 CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF
THE CLEARING AGENCY TO ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED
EXCEPT IN LIMITED CIRCUMSTANCES.]
[IF THIS GLOBAL SECURITY IS A RESTRICTED GLOBAL SECURITY INSERT: UNLESS THIS
PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE TRUST OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, ANY PREFERRED
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE PREFERRED SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS PREFERRED
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS PREFERRED SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS PREFERRED SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF
THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
"AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS PREFERRED SECURITY (OR ANY
1
PREDECESSOR OF THIS PREFERRED SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) SO LONG AS THIS PREFERRED SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NONUNITED STATES PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS PREFERRED SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE
RIGHT OF THE TRUST AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
AND (ii) PURSUANT TO CLAUSE (E) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE
TRUST A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE
OFFERING MEMORANDUM DATED AUGUST 7, 1997. SUCH HOLDER FURTHER AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS PREFERRED SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
[IF THIS GLOBAL SECURITY IS A REGULATION S GLOBAL SECURITY, INSERT: THIS
PREFERRED SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, UNITED STATES PERSONS UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS
AVAILABLE.]
2
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
SIG Capital Trust I
9 1/2% Trust Preferred Securities
(liquidation amount $1,000.00 per Preferred Security)
SIG Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that _______ (the
"Holder") is the registered owner of ___( ) preferred securities of the Trust
representing an undivided beneficial ownership interest in the assets of the
Trust and designated the SIG Capital Trust I 9 1/2% Trust Preferred Securities
(liquidation amount $1,000.00 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in the
Declaration (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth in, and this certificate and the Preferred Securities
represented hereby are issued and shall in all respects be subject to the terms
and provision of, the Amended and Restated Declaration of Trust of SIG Capital
Trust I dated as of August 12, 1997, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of Preferred
Securities as set forth therein. The Holder including the designation of the
terms of Preferred Securities as set forth therein. The Holder is entitled to
the benefits of the Guarantee Agreement entered into by Symons International
Group, Inc., an Indiana corporation, and Wilmington Trust Company, as guarantee
trustee, dated as of August 12, 1997, (the "Company Guarantee"), to the extent
provided therein. The Trust will furnish a copy of the Declaration and the
Company Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
3
IN WITNESS WHEREOF, one of the Company Trustees of the Trust has
executed this certificate this 12th day of August, 1997.
SIG CAPITAL TRUST I
By:______________________________________________
Name:
Title: Company Trustee
PREFERRED TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated WILMINGTON TRUST COMPANY,
as Preferred Trustee
By:______________________________________________
Authorized Signatory
4
FORM OF REVERSE SECURITY
Distributions payable on each Preferred Security will be fixed at a
rate per annum of 9 1/2% (the "Coupon Rate") of the Liquidation Amount of $1,000
per Preferred Security, such rate being the rate of interest payable on the
Notes to be held by the Preferred Trustee. Distributions in arrears for more
than one semi-annual period will bear interest thereon compounded semi-annually
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 Notes held by the Preferred
Trustee and to the extent that the payments are made in respect of the Notes
held by the Preferred Trustee and to the extent the Preferred Trustee has funds
on hand legally available therefor.
Distributions on the Preferred Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid from August 15, 1997 and will be payable
semi-annually in arrears on February 15 and August 15 of each year, commencing
on February 15, 1998, except as otherwise described below and in the
Declaration. Distributions will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period of less than a full
calendar month, the number of days elapsed in such month. As long as no Event of
Default has occurred and is continuing under the Indenture, the issuer of the
Note ("Note Issuer") has the right under the Indenture to defer payments of
interest by extending the interest payment period at any time and from time to
time on the Notes for a period not exceeding 10 consecutive calendar semi-annual
periods (each an "Extension Period"), provided that no Extension Period shall
extend beyond the Maturity Date of the Notes. As a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, semi-annual
Distributions will continue to accumulate with interest thereon (to the extent
permitted by applicable law, but not at a rate exceeding the rate of interest
then accruing on the Notes) at the Coupon Rate compounded semi-annually during
any such Extension Period. Prior to the termination of any such Extension
Period, the Note Issuer may further defer payments of interest by further
extending such Extension Period; provided that such Extension Periods, together
with all such previous and further extensions within such Extension Period may
not exceed 10 consecutive semi-annual periods, including the first semi-annual
period during such Extension Period, or extend beyond the Maturity Date of the
Notes. Payments of Distributions that have accumulated during any Extension
Period will be payable to Holders as they appear on the books and records of the
Trust on the record date for the first scheduled Distribution payment date
following the expiration of such Extension Period. Upon the expiration of any
Extension Period and the payment of all amounts then due, the Note Issuer may
commence a new Extension Period, subject to the above requirements. Capitalized
terms used herein and not otherwise defined are used as defined in the
Declaration.
The Company Trustees shall, at the direction of the Sponsor, at any
time dissolve and liquidate the Trust and, after satisfaction of liabilities to
creditors of the Trust, cause the Notes to be distributed to the holders of the
Securities in liquidation of the Trust or simultaneously with any redemption of
the Notes, cause a Like Amount of the Securities to be redeemed by the Trust.
The Preferred Securities shall be redeemable as provided in the
Declaration.
5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Preferred Securities 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
Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and
credit unions with membership in an approved signature guarantee
medallion program), pursuant to S.E.C. Rule 17 Ad-15.
6
[Include the following if the Preferred Security bears a Restricted Securities
Legend]
In connection with any transfer of any of the Preferred Securities evidenced by
this certificate, the undersigned confirms that such Preferred Securities are
being:
Check one box below
(1) exchanged for the undersigned's own account without transfer,
or
(2) transferred pursuant to and in compliance with Rule 144A under
the Securities Act Of 1933, as amended; or
(3) transferred to an institutional "accredited investor" within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Securities Act of 1933, as amended, that is
acquiring the Preferred Securities for its own account, or for
the account of such an institutional "accredited investor,"
for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in violation of
the Securities Act of 1933, as amended; or
(4) transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933, as
amended; or
(5) transferred pursuant to an effective registration statement.
unless one of the boxes is checked, the Securities Registrar will refuse to
register any of the Preferred Securities evidenced by this certificate in the
name of any person other than the registered Holder thereof; provided, however,
that if box (3), (4) or (5) is checked, the Securities Registrar may require,
prior to registering any such transfer of the Preferred Securities such legal
opinions, certifications and other information as the trust has reasonably
requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the
Securities Act of 1933, as amended, such as the exemption provided by Rule 144
under such Act; provided, further, that (i) if box (2) is checked, the
transferee must also certify that it is a qualified institutional buyer as
defined in Rule 144A or (ii) if box (4) is checked, the transferee must also
provide to the Securities Registrar a Transferee Letter of Representation in the
form attached to the Offering Memorandum dated August 7, 1997.
Date:___________________
Signature:______________________________________________________________________
(Sign exactly as your name appears on the other side of this Preferred Security)
7