Exhibit 4.16
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AMENDED AND RESTATED DECLARATION OF TRUST
AMONG
UNUMPROVIDENT CORPORATION
AS DEPOSITOR,
THE CHASE MANHATTAN BANK,
AS PROPERTY TRUSTEE,
THE CHASE MANHATTAN BANK USA, N.A.,
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
______________________
[UNUMPROVIDENT FINANCING TRUST __]
______________________
DATED AS OF _________, 200___
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[UNUMPROVIDENT FINANCING TRUST __]
Certain Sections of this Declaration relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
Trust Indenture Declaration
Act Section Section
- ------------- ------------
310 (a)(1).......................... 8.7
(a)(2).............................. 8.7
(a)(3).............................. 8.9
(a)(4).............................. 2.7 (a)(ii)
311 (a)(b).......................... 8.8
312 (a)............................. 5.7
(b)................................. 5.7
(c)................................. 5.7
313 (a)............................. 8.14(a)
(a)(4).............................. 8.14(b)
(b)................................. 8.14(b)
(c)................................. 10.8
(d)................................. 8.14(c)
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
315 (a)............................. 8.1(a)
(b)................................. 8.2, 10.8
(c)................................. 8.1(a)
(d)................................. 8.1, 8.3
(e)................................. Not Applicable
316 (a)............................. Not Applicable
(a)(1)(A)........................... Not Applicable
(a)(1)(B)........................... Not Applicable
(a)(2).............................. Not Applicable
(b)................................. 5.14
(c)................................. 6.7
317 (a)(1).......................... Not Applicable
(a)(2).............................. Not Applicable
(b)................................. 5.9
318 (a)............................. 10.10
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Declaration.
TABLE OF CONTENTS
Page
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ARTICLE I - INTERPRETATION AND DEFINITIONS...................................................... 1
SECTION 1.1. Interpretation................................................................... 1
SECTION 1.2. Certain Definitions.............................................................. 2
ARTICLE II - CONTINUATION OF THE TRUST.......................................................... 11
SECTION 2.1. Name............................................................................. 11
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business...................... 11
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 Debentures....... 12
SECTION 2.6. Declaration of Trust............................................................. 12
SECTION 2.7. Authorization to Enter into Certain Transactions................................. 13
SECTION 2.8. Assets of Trust.................................................................. 16
SECTION 2.9. Title to Trust Property.......................................................... 16
ARTICLE III - PAYMENT ACCOUNT................................................................... 16
SECTION 3.1. Payment Account.................................................................. 16
ARTICLE IV - DISTRIBUTIONS; REDEMPTION.......................................................... 17
SECTION 4.1. Distributions.................................................................... 17
SECTION 4.2. Redemption....................................................................... 18
SECTION 4.3. Subordination of Common Securities............................................... 20
SECTION 4.4. Payment Procedures............................................................... 21
SECTION 4.5. Tax Returns and Reports.......................................................... 21
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust..................................... 21
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions........................... 21
SECTION 4.8. Liability of the Holder of Common Securities..................................... 21
ARTICLE V - TRUST SECURITIES CERTIFICATES....................................................... 22
SECTION 5.1. Initial Ownership................................................................ 22
SECTION 5.2. The Trust Securities Certificates................................................ 22
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.......................... 22
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities Certificates....... 22
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates............... 23
SECTION 5.6. Persons Deemed Holders........................................................... 24
SECTION 5.7. Access to List of Holders' Names and Addresses................................... 24
SECTION 5.8. Maintenance of Office or Agency.................................................. 24
SECTION 5.9. Appointment of Paying Agent...................................................... 25
SECTION 5.10. Ownership of Common Securities by Depositor..................................... 25
SECTION 5.11. Global Preferred Securities Certificates; Common Securities Certificate......... 26
SECTION 5.12. Notices to Clearing Agency...................................................... 26
SECTION 5.13. Definitive Preferred Securities Certificates.................................... 27
SECTION 5.14. Rights of Holders............................................................... 27
ARTICLE VI - ACTS OF HOLDERS; MEETINGS; VOTING.................................................. 29
SECTION 6.1. Limitations on Voting Rights..................................................... 29
SECTION 6.2. Notice of Meetings............................................................... 30
SECTION 6.3. Meetings of Holders of Preferred Securities...................................... 30
SECTION 6.4. Voting Rights.................................................................... 31
SECTION 6.5. Proxies, etc..................................................................... 31
SECTION 6.6. Holder Action by Written Consent................................................. 31
SECTION 6.7. Record Date for Voting and Other Purposes........................................ 31
SECTION 6.8. Acts of Holders.................................................................. 32
SECTION 6.9. Inspection of Records............................................................ 33
ARTICLE VII - REPRESENTATIONS AND WARRANTIES.................................................... 33
SECTION 7.1. Representations and Warranties of the Property Trustee and the Delaware Trustee.. 33
SECTION 7.2. Representations and Warranties of Depositor...................................... 34
ARTICLE VIII - THE TRUSTEES..................................................................... 34
i
SECTION 8.1. Certain Duties and Responsibilities.............................................. 34
SECTION 8.2. Certain Notices.................................................................. 36
SECTION 8.3. Certain Rights of Property Trustee............................................... 36
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities........................... 39
SECTION 8.5. May Hold Securities.............................................................. 39
SECTION 8.6. Compensation; Indemnity; Fees.................................................... 40
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees..................... 41
SECTION 8.8. Conflicting Interests............................................................ 41
SECTION 8.9. Co-Trustees and Separate Trustee................................................. 41
SECTION 8.10. Resignation and Removal; Appointment of Successor............................... 42
SECTION 8.11. Acceptance of Appointment by Successor.......................................... 43
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business..................... 44
SECTION 8.13. Preferential Collection of Claims Against Depositor or Trust.................... 44
SECTION 8.14. Reports by Property Trustee..................................................... 45
SECTION 8.15. Reports to the Property Trustee................................................. 45
SECTION 8.16. Evidence of Compliance with Conditions Precedent................................ 45
SECTION 8.17. Number of Trustees.............................................................. 46
SECTION 8.18. Delegation of Power............................................................. 46
SECTION 8.19. Delaware Trustee................................................................ 46
ARTICLE IX - TERMINATION, LIQUIDATION AND MERGER................................................ 47
SECTION 9.1. Dissolution Upon Expiration Date................................................. 47
SECTION 9.2. Early Termination................................................................ 47
SECTION 9.3. Termination...................................................................... 48
SECTION 9.4. Liquidation...................................................................... 48
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Trust.............. 49
ARTICLE X - MISCELLANEOUS PROVISIONS............................................................ 50
SECTION 10.1. Limitation of Rights of Holders................................................. 50
SECTION 10.2. Amendment....................................................................... 51
SECTION 10.3. Separability.................................................................... 52
SECTION 10.4. Governing Law................................................................... 52
SECTION 10.5. Payments Due on Non-Business Day................................................ 52
SECTION 10.6. Successors...................................................................... 52
SECTION 10.7. Headings........................................................................ 53
SECTION 10.8. Reports, Notices and Demands.................................................... 53
SECTION 10.9. Agreement Not to Petition....................................................... 53
SECTION 10.10. Agreed Tax Treatment of Trust and Trust Securities............................. 54
SECTION 10.11. Application of Trust Indenture Act............................................. 54
SECTION 10.12. Acceptance of Terms of Declaration, Guarantee and Indenture.................... 54
SECTION 10.13. Counterparts................................................................... 55
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AMENDED AND RESTATED DECLARATION OF TRUST, dated as of ____________, 200__,
among (i) UNUMPROVIDENT CORPORATION, a Delaware corporation (including any
successors or assigns, the "Depositor"), (ii) THE CHASE MANHATTAN BANK, a
banking corporation organized under the laws of the State of New York, as
property trustee, (in each such capacity, the "Property Trustee" and, in its
separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) THE CHASE MANHATTAN BANK USA, N.A., a national banking
association organized under the laws of the United States, as Delaware trustee
(the "Delaware Trustee"), (iv) __________________, an individual,
_________________, an individual, and _________________, an individual, each of
whose address is c/o UNUMPROVIDENT CORPORATION, 1 Fountain Square, Chattanooga,
Tennessee 37402 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") and (v) the several HOLDERS, as hereinafter defined.
W I T N E S S E T H :
WHEREAS, the Depositor, The Chase Manhattan Bank USA, N.A., as Trustee, The
Chase Manhattan Bank, as Trustee, and ______________________, as Trustee have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Declaration of
Trust, dated as of ______________, 200__ (the "Original Declaration"), and by
the execution and filing by The Chase Manhattan Bank USA, N.A., as Trustee, The
Chase Manhattan Bank, as Trustee, and ____________________, as Trustee, with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on _____________, 200___, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Declaration in its entirety as set forth herein to provide for, among
other things, (i) the issuance of the Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Preferred Securities by the Trust
pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust from
the Depositor of all of the right, title and interest in the Debentures and (iv)
the appointment of the Property Trustee, the Delaware Trustee, and
Administrative Trustees;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby amends and restates the Original
Declaration in its entirety and agrees as follows:
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1. Interpretation.
For all purposes of this Declaration, except as otherwise expressly
provided or unless the context otherwise requires:
1
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be,
of this Declaration;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration as a whole and not to any
particular Article, Section or other subdivision; and
(e) the words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation".
SECTION 1.2. Certain Definitions.
For all purposes of this Declaration, the following terms shall have the
meanings assigned below:
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest paid
by the Depositor on a Like Amount of Debentures for such period.
"Additional Interest" has the meaning specified in Section 101 of the
Indenture.
"Additional Sums" has the meaning specified in Section 1013 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Declaration, solely in such
Person's capacity as Administrative Trustee of the Trust and not in such
Person's individual capacity, or such Administrative Trustee's successor in
interest in such capacity, or any successor trustee appointed as herein
provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that the Trust shall not
be deemed an Affiliate of the Depositor. 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" has the meaning specified in the preamble to this Declaration.
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"Bankruptcy Event" means, with respect to any Person:
(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 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 a
bankrupt or insolvent, or the consent by it to the institution of
proceedings against it under any bankruptcy, insolvency,
reorganization or other similar laws, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable 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 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 or
authorization of corporate action by such Person in furtherance of any
such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, or (ii) a certificate signed by the authorized officer or
officers of the Depositor to whom the Board of Directors or a committee thereof
has delegated its authority and, in each case, delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means Preferred Securities
Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than
(a) a Saturday or Sunday,
(b) a day on which banking institutions in the City of New York are
authorized or required by law, regulation or executive order to remain
closed, or
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(c) a day on which the Property Trustee's Corporate Trust Office or the
Corporate Trust Office of the Debenture Trustee is closed for
business.
"Certificate Depository Agreement" means the agreement among the Trust, the
Depositor and The Depository Trust Company, 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.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The Depository Trust Company will
be the initial Clearing Agency with respect to Trust Securities Certificates.
"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 Underwriting Agreement,
which date 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 Declaration 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 Holder" means the holder of all or substantially all of the Common
Securities.
"Common Securities Certificate" means a certificate evidencing Common
Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Declaration, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located in New York, New
York, and (ii) when used with respect to the Debenture Trustee, the principal
office of the Debenture Trustee located in New York, New York.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture
including any date fixed for redemption pursuant to the exercise by the
Depositor of its optional right to redeem the Debentures
-4-
prior to their stated maturity either (i) in whole or in part after a certain
date specified in the applicable prospectus supplement and in any supplemental
indenture or Board Resolution or (ii) in whole but not in part after the
occurrence of a Debenture Tax Event or an Investment Company Event.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, a banking corporation
organized under the laws of the State of New York, solely in its capacity as
Debenture Trustee of the Debentures and not in its individual capacity and any
successor thereto.
"Debentures" means the aggregate principal amount of the Depositor's
______% [Junior Subordinated Deferrable Interest Debentures], Series ____,
issued pursuant to the Indenture.
"Declaration" means this Amended and Restated Declaration of Trust, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto and (ii) 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.
"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates that are not Global
Preferred Securities as provided in Section 5.11(a) and (b) Preferred Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.13.
"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 the Person identified as the "Delaware Trustee" in
the preamble to this Declaration, 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.
"Depositor" has the meaning specified in the preamble to this Declaration.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
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(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period
of 30 days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Administrative Trustees in this
Declaration (other than those specified in clause (b) or (c) above)
and continuation of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 90 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time and the rules and regulations promulgated thereunder by the
Commission.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Preferred Security" means a Preferred Securities Certificate
evidencing ownership of Book-Entry Preferred Securities.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and The Chase Manhattan Bank, as trustee, contemporaneously with the
execution and delivery of this Declaration, for the benefit of the holders of
the Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security is registered in the
Securities Register; any such Person shall be deemed to be a beneficial owner
within the meaning of the Delaware Business Trust Act.
"Indenture" means the [Indenture], dated as of ______________, 200____,
between the Depositor and the Debenture Trustee, as trustee, as amended or
supplemented from time to time.
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"Investment Company Act" or "1940 Act" means the Investment Company Act of
1940, as amended.
"Investment Company Event" means the receipt by the Trust of an opinion of
counsel experienced in such matters (which may be counsel to the Depositor or
the Trust) to the effect that, as a result of the occurrence of a change in law
or regulation or a written change (including any announced prospective change)
in interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act,
which change or prospective change becomes effective or would become effective,
as the case may be, on or after the date of the issuance of the Preferred
Securities.
"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
Debentures 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, (b) with respect to a distribution of Debentures to Holders in
connection with a dissolution or liquidation of the Trust, Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Trust
Securities of the Holder to whom such Debentures are distributed and (c) with
respect to any distribution of Additional Amounts to Holders of Trust
Securities, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities in respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $_______ per Trust
Security.
"Liquidation Date" means the date on which Debentures 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).
"Majority in Liquidation Amount of the Preferred Securities" or "Majority
in Liquidation Amount of the Common Securities" means, except as provided by the
Trust Indenture Act, Preferred Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Preferred Securities or all then Outstanding Common Securities, as
the case may be.
"Officers' Certificate" means a certificate signed by the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Depositor, and delivered to the appropriate
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or accounting officer
of the
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Depositor. Any Officers' Certificate delivered with respect to compliance with a
covenant or condition provided for in this Declaration shall include:
(a) a statement by each officer signing the Officers' Certificate that
such officer 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 such officer in rendering the Officers'
Certificate;
(c) a statement by 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 such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Trust or the Depositor or any Affiliate of either and
who shall be reasonably acceptable to the Property Trustee.
"Original Declaration" has the meaning specified in the recitals to this
Declaration.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Declaration, except:
(a) Trust Securities theretofore canceled by the Securities Registrar or
delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Declaration;
(c) Trust Securities that 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, 5.11 and 5.13; provided, however, that
in determining whether the Holders of the requisite aggregate
Liquidation Amount of Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Depositor, any Trustee or
any Affiliate of the Depositor or any Trustee shall be disregarded and
deemed not to be Outstanding, except that (a) in determining whether
any Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent
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or waiver, only Preferred Securities that a Responsible Officer of
such Trustee actually knows to be so owned shall be so disregarded;
and
(d) the foregoing shall not apply at any time when all the Outstanding
Preferred Securities are owned by the Depositor, 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 Administrative
Trustees the pledgee's right so to act with respect to such Preferred
Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate 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).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Holders in which all amounts paid in respect of the
Debentures will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Holders in accordance with Sections 4.1 and
4.2.
"Person" means any individual, corporation, association, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $1,000 and having the rights
provided therefor in this Declaration, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing Preferred
Securities, substantially in the form attached as Exhibit E.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Declaration, solely in its capacity as Property Trustee of
the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for redemption thereof; provided that each Debenture Redemption
Date and the stated maturity of the Debentures shall be a Redemption Date for a
Like Amount of Trust Securities.
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"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount thereof, plus accumulated and unpaid Distributions to the
Redemption Date, plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" shall mean when used with respect to the Property
Trustee, any officer within the Corporate Trust Office including any Vice
President, Managing Director, Trust Officer, Assistant Vice President,
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Trust" means the Delaware business trust heretofore created, and continued
hereby, and identified on the cover page to this Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Declaration is executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the Trust
under the Expense Agreement, (c) any cash on deposit in, or owing to, the
Payment Account and (d) 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 Property Trustee pursuant to the trusts of this Declaration.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee,
and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
____________, 200___, among the Trust, the Depositor and the several
underwriters named therein.
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ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "[UnumProvident Financing
Trust __]", as such name may be modified from time to time by the Administrative
Trustees following written notice to the Holders of Trust Securities and the
other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The name and address of the Delaware Trustee, with a principal place of
business in the State of Delaware, is The Chase Manhattan Bank USA, N.A., 1201
Market Street, Wilmington, Delaware 19801, Attention: Corporate Trust
Administration, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders and the Depositor. The
principal executive office of the Trust is in care of UnumProvident Corporation,
1 Fountain Square, Chattanooga, Tennessee 37402.
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Declaration of the sum of $10, which constituted
the initial Trust Property. The Depositor shall pay organizational expenses of
the Trust as they arise or shall, upon request of any Trustee, promptly
reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.4. Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust and pursuant to the Original
Declaration, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Declaration, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Sections 5.2, 5.3 and 8.9(a) and deliver to the Underwriters named in the
Underwriting Agreement Preferred Securities Certificates, registered in the name
of the nominee of the initial Clearing Agency, representing ______________
Preferred Securities, having an aggregate Liquidation Amount of $_______________
against receipt of the aggregate purchase price of such Preferred Securities of
$_________________ which amount such Administrative Trustee shall promptly
deliver to the Property Trustee. [In connection with the exercise of any over-
allotment option set forth in the Underwriting Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Sections 5.2,
5.3 and 8.9(a) and deliver to the Underwriters named in the Underwriting
Agreement Preferred Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency or as otherwise requested by the
purchasers named in such Underwriting Agreement, representing _________
Preferred Securities, having an aggregate Liquidation Amount of $______________
against receipt of the aggregate purchase price of such Preferred Securities of
$______________, which amount such Administrative Trustee shall promptly deliver
to the Property Trustee.]
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SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debentures.
Contemporaneously with the execution and delivery of this Declaration, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Sections 5.2, 5.3 and 8.9(a) and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, representing __________
Common Securities, having an aggregate Liquidation Amount of $_______________,
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe for and purchase from the Depositor Debentures, registered in
the name of the Trust and having an aggregate principal amount of
$_________________, and, in satisfaction of the purchase price for such
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $_________________ (being the sum of the amounts delivered
to the Property Trustee pursuant to (i) the second sentence of Section 2.4 and
(ii) the first sentence of this Section 2.5). [In connection with the exercise
of the over-allotment option set forth in the Underwriting Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Sections 5.2, 5.3 and 8.9(a) and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, representing _________
Common Securities, having an aggregate Liquidation Amount of $_____________
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe for and purchase from the Depositor Debentures, registered in
the name of the Trust and having an aggregate principal amount of
$______________, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $____________ (being the sum of the amount delivered to the Property
Trustee pursuant to (i) the third sentence of Section 2.4 and (ii) the third
sentence of this Section 2.5).]
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and to use the proceeds from such sale to acquire Debentures,
(b) to make distributions to the Holders of Trust Securities, and (c) to engage
in those activities necessary, convenient or incidental thereto. The Depositor
hereby appoints the Trustees as trustees of the Trust, each to have all the
rights, powers and duties of such Trustee set forth herein, and the Trustees
hereby accept such appointment. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the Holders. The Administrative
Trustees shall have all rights, powers and duties set forth herein and in
accordance with applicable law with respect to accomplishing the purposes of the
Trust. Notwithstanding anything in this Declaration to the contrary, the
Delaware Trustee shall not be entitled to exercise any powers or authority
(except to the extent required under the Delaware Business Trust Act), nor shall
the Delaware Trustee have any of the duties and responsibilities, of the
Trustees collectively, the Property Trustee or the Administrative Trustees set
forth herein. Notwithstanding any provision to the contrary in this Declaration
or elsewhere, the Delaware Trustee shall be one of the trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Delaware Business Trust Act and (except for such duties of the Delaware
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Trustee as may be expressly set forth herein) the Delaware Trustee (both as such
and in its individual capacity) shall have no duties or liabilities to any
Person under this Declaration or otherwise in respect of or in connection with
the Trust, the Trust Securities, or its serving as a trustee of the Trust.
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 Section
2.7(b), and in accordance with the following clauses (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 Administrative 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 Expense Agreement and 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 of 1933, as amended, and under applicable
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 listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and with the registration of the Preferred Securities
under the Securities Exchange Act of 1934, as amended, and with
the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and
the Debentures to the Holders in accordance with this
Declaration;
(F) the appointment of a Paying Agent and Securities Registrar in
accordance with this Declaration;
(G) execution of the Trust Securities in accordance with this
Declaration;
(H) registering transfer of the Trust Securities in accordance with
this Declaration;
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(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 or the
Delaware Business Trust Act, to execute on behalf of the Trust
(either acting alone or together with any or all of the
Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Declaration;
and
(K) the taking of any action incidental or convenient 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 Holders (without consideration
of the effect of any such action on any particular Holder).
(ii) As among the Trustees, the Property 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 Debentures;
(C) the collection of interest, principal and any other payments made
in respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to the
Holders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Debentures;
(F) the sending of notices of default and other information regarding
the Trust Securities and the Debentures to the Holders 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;
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(I) after an Event of Default (other than under paragraph (b), (c),
(d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee) the taking
of any action incidental or convenient to the foregoing as the
Property Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration and
protect and conserve the Trust Property for the benefit of the
Holders (without consideration of the effect of any such action
on any particular Holder); and
(J) except as otherwise provided in this Section 2.7(a)(ii), the
Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth
in Section 2.7(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 Holders, except as expressly
provided herein, (iii) take any action that would cause, or would reasonably be
expected to cause, the Trust to become taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes, (iv)
incur any indebtedness for borrowed money or issue any other debt or (v) take or
consent to any action that would (1) cause the Debentures or any security
succeeding such Debentures to be treated as other than indebtedness of the
Depositor for United States federal income tax purposes unless the Trust first
obtains the consent of all Holders of Outstanding Preferred Securities or (2)
result in the granting or creation of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Declaration are hereby ratified and confirmed in all respects): (i) the
preparation and filing by the Trust with the Commission and the execution on
behalf of the Trust of a registration statement on the appropriate form in
relation to the Preferred Securities, including any amendments thereto and the
taking of any action necessary or desirable to sell the Preferred Securities in
a transaction or series of transactions pursuant thereto; (ii) the determination
of the States or other jurisdictions (if any) 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 Depositor deems necessary or advisable in order to comply with
the applicable laws of any such States; (iii) the preparation for filing by the
Trust and execution on behalf of the Trust of an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing, upon notice of issuance, of any Preferred Securities; (iv)
the preparation for filing by the Trust with the
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Commission and the execution on behalf of the Trust of a registration statement
on Form 8-A relating to the registration of the Preferred Securities under
Section 12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the
Underwriting 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 Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or to be classified as an
association taxable as a corporation for United States federal income tax
purposes and so that the Debentures will be treated as indebtedness of the
Depositor for United States federal income tax purposes. In this connection,
the Depositor and the Administrative Trustees are authorized to take any action,
not inconsistent with applicable law, the Certificate of Trust or this
Declaration, that each of the Depositor and any Administrative Trustee
determines in its 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 the 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
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Holders in accordance
with this Declaration.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and 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 Property Trustee in the Payment Account for the exclusive benefit of
the Holders and for distribution as herein provided, including (and subject to)
any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds in respect of, the Debentures.
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(c) Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including Additional Amounts) will be made on
the Trust Securities at the rate and on the dates that payments of interest
(including Additional Interest) are made on the Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accrue from
____________, 200____, and, except to the extent that the Depositor
exercises its right to defer the payment of interest on the
Debentures in accordance with the Indenture, shall be payable semi-
annually in arrears on _______ 15 and ___________ 15 of each year,
commencing on ________________ 15, 200___. If any date on which a
Distribution would otherwise be 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, so long
as such payment is made on the next succeeding Business Day, without
any interest or other payment in respect of any such delay), or, if
such Business Day falls in the next calendar year, 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").
(ii) In the event (and to the extent) that the Depositor exercises its
right under the Indenture to defer the payment of interest on the
Debentures, Distributions on the Preferred Securities shall be
deferred but shall continue to accumulate. Distributions on the Trust
Securities shall be payable at a rate of ______% per annum of the
Liquidation Amount of the Trust Securities. 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 actual number of days elapsed in a 360-day year of twelve 30-
day months. The amount of Distributions payable for any period shall
include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on
hand and available in the Payment Account for the payment of such
Distributions.
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(b) 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 at the close of business on the relevant
record date for such Distribution Date, which shall be one Business 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 for a
Distribution Date shall be the date 15 days prior to such Distribution Date.
Distributions payable on any Trust Securities that are not punctually paid on
any Distribution Date as a result of the Depositor having failed to make an
interest payment under the Debentures will cease to be payable to the Person in
whose name such Trust Securities are registered on the relevant record date, and
such defaulted Distribution will instead be payable to the Person in whose name
such Trust Securities are registered on the special record date or other
specified date for determining Holders entitled to such defaulted interest
established in accordance with the Indenture.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and upon the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property 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 state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be calculated
prior to the time the notice is required to be sent, an estimate of
the Redemption Price provided pursuant to the Indenture together with
a statement that it is an estimate and that the actual Redemption
Price will be calculated on the third Business Day prior to the
Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that such
Redemption Price is calculated);
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be redeemed,
the identification and the aggregate Liquidation Amount of the Trust
Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price in respect of each
such Trust Security to be redeemed will be due and payable and that
Distributions thereon will cease to accrue on and after said date
(except as provided in the last sentence of Section 4.2(d)); and
(vi) the place or places of business where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
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(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the
Redemption Price shall be due and payable on each Redemption Date only to the
extent that the Trust has funds then on hand and available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then, by 10:00 A.M., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made by such time, then by
12:00 noon, New York City time, on the Redemption Date, subject to Section
4.2(c), the Property Trustee will, so long as the Preferred Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption Price.
If the Preferred Securities are no longer in book- entry-only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, any Distribution 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
Securities Register on the relevant record date for such Distribution Date. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Holders of Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price therefor and any Distribution payable in respect of the
Trust Securities on or prior to the Redemption Date, but without interest, and
such Trust Securities will cease to be outstanding. 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 (and without any interest or other payment in respect
of any such delay), or, if such Business Day falls in the next calendar year, on
the immediately preceding Business Day, in each case, with the same force and
effect as if made on such date. In the event that payment of the Redemption
Price for any Trust Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accumulate,
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.
(e) Payment of the Redemption Price for Trust Securities shall be made to
the recordholders thereof as they appear on the Securities Register on the
relevant record date for the Redemption Date, which shall be one Business Day
prior to such Redemption Date; provided, however, that in the event that the
Preferred Securities do not remain in book-entry-only form, the relevant record
date for a Redemption Date shall be the date 15 days prior to such Redemption
Date.
(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 pro
rata (based on Liquidation Amounts) among the Common
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Securities and the Preferred Securities. The particular Preferred Securities to
be redeemed shall be selected pro rata (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $_______ or an integral multiple of $_______ in excess
thereof) of the Liquidation Amount of Preferred Securities of a denomination
larger than$_______; provided, however, that so long as the Preferred Securities
are in book-entry-only form, such selection shall be made in accordance with the
customary procedures for the Clearing Agency for the Preferred Securities by
such Clearing Agency. The Property Trustee shall promptly 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.
SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, the Redemption Price of, and the Liquidation Distribution in respect of, the
Trust Securities, as applicable, shall be made, subject to Section 4.2(f), pro
rata (based on Liquidation Amounts) among the Common Securities and the
Preferred Securities; provided, however, that if on any Distribution Date,
Redemption Date or Liquidation Date any Event of Default resulting from a
Debenture Event of Default specified in Section 501(1) or 501(2) of the
Indenture shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, Redemption Price of, or
Liquidation Distribution in respect 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 all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) 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, or in
the case of payment of the Liquidation Distribution the full amount of such
Liquidation Distribution on all Outstanding Trust Securities, shall have been
made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or the
Redemption Price of, Preferred Securities then due.
(b) In the event of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Declaration until the effect of all such Events of Default with respect to
the Preferred Securities have been cured, waived or otherwise eliminated. Until
any such Event of Default under this Declaration with respect to the Preferred
Securities has been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holder of the Common Securities,
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and only the Holders of all the Preferred Securities will have the right to
direct the Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable) 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 such Clearing Agency in immediately available
funds. Payments in respect of the Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the Common Holder.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
forms and returns required to be filed in respect of the Trust in each taxable
year of the Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Holder the appropriate Internal Revenue Service form required
to be provided on such form. The Administrative Trustees shall provide the
Depositor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. The Trustees and the Trust shall
comply with United States federal withholding and backup withholding tax laws
and information reporting requirements with respect to any payments to Holders
under the Trust Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly 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 which were included in such Additional Sums.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or an Owner with
respect to the Holder's Preferred Securities) has directly received pursuant to
Section 508 of the Indenture or Section 5.14 of this Declaration.
SECTION 4.8. Liability of the Holder of Common Securities.
The Holder of the Common Securities shall be liable for the debts and
obligations of the Trust in the manner and to the extent set forth in the
Expense Agreement.
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ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
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 Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates.
The Trust Securities Certificates shall be issued in minimum denominations
of $_______ Liquidation Amount and integral multiples of $_______ in excess
thereof. The Trust Securities Certificates shall be executed on behalf of the
Trust by manual or facsimile signature of at least one Administrative Trustee.
Trust Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Declaration, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the delivery of such
Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.4, 5.11 and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor, in authorized denominations. [In connection with the exercise of any
over-allotment option set forth in the Underwriting Agreement, the
Administrative Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in the third sentence of Section 2.4
and the third sentence of Section 2.5, to be executed on behalf of the Trust and
delivered to or upon the written order of the Depositor, signed by its chairman
of the board, its president, any executive vice president or any vice president,
treasurer or assistant treasurer or controller without further corporate action
by the Depositor, in authorized denominations.]
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates.
The Property Trustee shall keep or cause to be kept, at its Corporate Trust
Office, 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 and transfer agent with
respect to the Trust Securities designated by the Depositor (the "Securities
Registrar"), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of
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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 Property Trustee shall be the initial Securities Registrar. The
provisions of Sections 8.1, 8.3 and 8.6 shall apply to the Property Trustee also
in its role as Securities Registrar, for so long as the Property Trustee shall
act as Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required, (i) to issue, register the
transfer of or exchange any Preferred Security during a period beginning at the
opening of business 15 days before the day of selection for redemption of such
Preferred Securities pursuant to Article IV and ending at the close of business
on the day of mailing of the notice of redemption, or (ii) to register the
transfer of or exchange any Preferred Security so selected for redemption in
whole or in part, except, in the case of any such Preferred Security to be
redeemed in part, any portion thereof not to be redeemed. At the option of a
Holder, Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be duly endorsed and accompanied by a
written instrument of transfer in form satisfactory to an Administrative Trustee
and the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange or for payment shall be canceled and
subsequently disposed of by an Administrative Trustee or Securities Registrar in
accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
The Property Trustee shall not be required to ensure or verify compliance
with securities laws, including the Securities Act, the Exchange Act and 1940
Act, in connection with transfers and exchanges of Preferred Securities
Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the 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
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Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available 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 Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the Trust Property, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
If any such mutilated, destroyed, lost or stolen Trust Securities
Certificate has become or is about to become due and payable, the Administrative
Trustees in their discretion may, instead of issuing a new Trust Securities
Certificate, pay such Trust Securities Certificate.
The provisions of this Section 5.5 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement of
mutilated, destroyed, lost or stolen Trust Securities Certificates.
SECTION 5.6. Persons Deemed Holders.
The 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 whatsoever, and neither the
Trustees nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, or any of the Trustees, accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.
SECTION 5.8. Maintenance of Office or Agency.
The Administrative 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
Administrative Trustees initially designate The Chase Manhattan Bank, 450 West
33rd Street, 15th Floor, New York, New York 10001 Attention: Corporate Trust
Administration, as their principal corporate trust office for such purposes.
The Administrative Trustees shall give prompt written notice to the Depositor
and to the Holders of any change in the location of the Securities Register or
any such office or agency.
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SECTION 5.9. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the power
to receive funds (and if the Paying Agent shall also be the Property Trustee,
such Paying Agent shall have the power to withdraw funds) from the Payment
Account solely for the purpose of making the Distributions referred to above.
The Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Declaration in any material
respect. The Paying Agent shall initially be the Bank, and any co- paying agent
chosen by the Bank, and acceptable to the Administrative Trustees and the
Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees, the
Property Trustee and the Depositor. 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 Administrative Trustees shall appoint a successor that is
acceptable to the Property Trustee and the Depositor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative 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 Holders
in trust for the benefit of the Holders entitled thereto until such sums shall
be paid to such Holders. The Paying Agent shall return all unclaimed funds to
the Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The provisions
of Sections 8.1, 8.3 and 8.6 shall apply to the Bank also in its capacity 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 hereunder. Any reference
in this Declaration to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain beneficial and
record ownership of the Common Securities executed and delivered on the Closing
Date. [In connection with the exercise of any over-allotment option set forth
in the Underwriting Agreement, the Depositor shall acquire and retain beneficial
and record ownership of the additional Common Securities executed and delivered
in connection with the exercise of the over-allotment option.] To the fullest
extent permitted by law, other than a transfer to an Affiliate of the Depositor
or in connection with a transaction permitted pursuant to Article Eight of the
Indenture (and in either case only upon an effective assignment and delegation
by the Holder of all the Common Securities to its transferee of all of its
rights and obligations under the Expense Agreement), any attempted transfer of
the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE WITH
SECTION 5.10 OF THE DECLARATION."
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SECTION 5.11. Global Preferred Securities Certificates; Common Securities
Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will
be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Global Preferred Securities, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Trust. Such Preferred Securities Certificate or Certificates shall initially be
registered on the Securities Register in the name of Cede & Co., the nominee of
the initial Clearing Agency, and no Owner will receive a Definitive Preferred
Securities Certificate representing such Owner's interest in such Preferred
Securities and no transfer of the certificate representing the Book-Entry
Preferred Security in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Book-Entry Preferred Security or
a nominee thereof, except as provided in Section 5.13. Unless and until
Definitive Preferred Securities Certificates have been issued to Owners pursuant
to Section 5.13:
(i) the Securities Registrar and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Declaration
relating to the Global Preferred Securities (including the payment of
the Liquidation Amount of and Distributions on the Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates
and the giving of instructions or directions to Owners of Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates)
as the sole Holder of Preferred Securities and shall have no
obligations to the Owners thereof;
(ii) to the extent that the provisions of this Section 5.11 conflict with
any other provisions of this Declaration, the provisions of this
Section 5.11 shall control; and
(iii) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between
such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments on the Preferred Securities to such
Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Holders or Owners
is required under this Declaration, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Holders and Owners to the Clearing Agency, and shall have
no obligations to the Owners.
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SECTION 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency, (c) the Clearing Agency ceases to be a clearing
agency registered under the Exchange Act and no qualified successor is appointed
by the Administrative Trustees within 90 days after its receipt of such notice
or its becoming aware of such cessation, or (d) there shall have occurred and be
continuing a Debenture Event of Default, then an Administrative Trustee shall
notify the Clearing Agency and the Clearing Agency shall notify all Owners of
Book-Entry Preferred Securities Certificates and the other Trustees of the
occurrence of any such event and of the availability of the Definitive Preferred
Securities Certificates to Owners of such class or classes, as applicable,
requesting the same. Upon surrender to the Property Trustee or Registrar of the
typewritten Preferred Securities Certificate or Certificates representing the
Book Entry Preferred Securities Certificates by the Clearing Agency, accompanied
by registration instructions, the Administrative Trustees, or any one of them,
shall execute the Definitive Preferred Securities Certificates in accordance
with the instructions of the Clearing Agency. Neither the Securities Registrar
nor the Trustees shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be fully protected in relying on, such
instructions. Upon the issuance of Definitive Preferred Securities
Certificates, the Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as Holders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by the execution thereof by the Administrative Trustees
or any one of them.
SECTION 5.14. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Trust conferred by their Trust
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described below. The Trust
Securities shall be personal property giving only the rights specifically set
forth therein and in this Declaration. The Trust Securities shall have no
preemptive or similar rights. When issued and delivered to Holders of Preferred
Securities against payment of the purchase price therefor, the Preferred
Securities will be fully paid and nonassessable undivided beneficial interests
in the Trust Property. The Holders, 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.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in aggregate principal amount of the outstanding Debentures fail
to declare the principal of all of the Debentures to be immediately due, the
Holders of at least 25% in aggregate Liquidation Amount of the Preferred
Securities then Outstanding shall have such right by a notice in writing to the
Depositor,
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the Property Trustee and the Debenture Trustee; and upon any such declaration
such principal amount of and the accrued interest on all of the Debentures shall
become immediately due, provided that the payment of principal and interest on
such Debentures shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to
the Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, by written notice to the Property Trustee, the Depositor
and the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a sum
sufficient to pay
(A) all overdue installments of interest (including any Additional
Interest) on all of the Debentures,
(B) the principal of (and premium, if any, on) any Debentures which
have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the
Debentures, and
(C) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other than the
non- payment of the principal of the Debentures which has become due
solely by such acceleration, have been cured or waived as provided in
Section 513 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any past default under the Indenture or Debenture Event of Default with respect
to the Debentures, 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 Debenture 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 Debenture. Upon any such waiver, such
default or Debenture Event of Default shall cease to exist and any default or
Debenture Event of Default arising therefrom shall be deemed to have been cured
for every purpose of the Indenture, but no such waiver shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Preferred Securities, 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 Property Trustee
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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 acceleration, or rescission and annulment, as
the case may be, 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 record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, 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 acceleration, or
rescission and annulment thereof, as the case may be, 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 5.14(b).
(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, upon a Debenture Event of Default specified in Section 501(1) or
501(2) of the Indenture, any Holder of Preferred Securities shall have the right
to institute a proceeding directly against the Depositor, pursuant to Section
508 of the Indenture, for enforcement of payment to such Holder of any amounts
payable in respect of Debentures having an aggregate principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c),
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to holders of, or in respect of, Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and (c) of this
Section 5.13, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Declaration 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 Holders from time to time as
partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method or place of conducting any
proceeding for any remedy available to the
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Debenture Trustee, or executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures, (ii) waive any past default which is
waivable under Section [513] of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Debentures shall be
due and payable or (iv) consent to any amendment, modification or termination of
the Indenture or the Debentures, where such consent shall be required, without,
in each case, obtaining the prior approval of the Holders of at least a Majority
in Liquidation Amount of the Preferred Securities; provided, however, that where
a consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Preferred
Securities. The 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. The Property Trustee
shall notify all Holders of Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of Holders of Preferred Securities, prior
to taking any of the foregoing actions, the Trustees shall, at the expense of
the Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that such action shall not cause the Trust to be classified as other than
a grantor trust or taxable as a corporation for United States federal income tax
purposes.
(c) If any proposed amendment to the Declaration provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the
Preferred 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 Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities. Notwithstanding any other provision of this
Declaration, no amendment to this Declaration may be made if, as a result of
such amendment, it would cause the Trust to be classified as other than a
grantor trust or taxable as a corporation for United States federal income tax
purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of Holders of Preferred Securities, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each such Holder at such Holder's address as it
appears in the Securities Register as of the record date for such meeting. Such
notice shall be sent, first-class mail, at least 15 days and not more than 90
days before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
SECTION 6.3. Meetings of Holders of Preferred Securities.
No annual meeting of Holders is required to be held. The Administrative
Trustees, however, shall call a meeting of Holders of Preferred Securities to
vote on any matter upon the written request of the Holders of record of at least
25% in aggregate Liquidation Amount of Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at
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any time in their discretion, call a meeting of Holders of Preferred Securities
to vote on any matters as to which Holders of Preferred Securities are entitled
to vote. Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of Holders of Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by the Holders of
record present, in person or by proxy, holding at least a Majority in
Liquidation Amount of the Preferred Securities held by the Holders of record
present, either in person or by proxy, at such meeting shall constitute the
action of the Holders of Preferred Securities, unless this Declaration requires
a lesser or greater number of affirmative votes.
SECTION 6.4. Voting Rights.
In respect of any matter as to which a Holder is entitled to vote, such
Holder shall be entitled to one vote for each $1,000 of Liquidation Amount Trust
Securities held of record by such Holder.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall have
been placed on file with the Administrative Trustees, or with such other officer
or agent of the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only Holders
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 Holder 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. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be taken without
a meeting and without prior notice if Holders holding a Majority in Liquidation
Amount of the Preferred Securities entitled to vote in respect of such action
(or such lesser or greater proportion thereof as shall be required by any
express provision of this Declaration) shall consent to the action in writing.
Any action that may be taken by the Holders of all the Common Securities may be
taken if such Holders shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
Except as provided in Section 5.14(b), for the purpose of determining the
Holders who are entitled to notice of and to vote at any meeting or to act by
written consent, or to participate in any
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Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Declaration, or for the purpose of any other
action, the Administrative Trustees or Property Trustee may from time to time
fix a date, not more than 90 days prior to the date of any meeting of Holders 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 Holders of record for such
purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Declaration to be given, made or
taken by Holders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders 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 an Administrative Trustee and the
Property Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders 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 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 to 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 Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Trust Security shall bind every future Holder of
the same Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustees or the
Trust in reliance thereon, whether or not notation of such action is made upon
such Trust Security.
Without limiting the foregoing, a Holder 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 Holders and the Administrative
Trustees or among such Holders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee under this
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Article VI, then the determination of such matter by the Property Trustee shall
be conclusive with respect to such matter.
SECTION 6.9. Inspection of Records.
Upon reasonable prior written notice to the Administrative Trustees and the
Property Trustee, the records of the Trust shall be open to inspection by any
Holder during normal business hours for any purpose reasonably related to such
Holder's interest as a Holder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to itself alone, hereby represents and warrants for the benefit of the
Depositor and the Holders that:
(a) the Property Trustee is a banking corporation, duly organized, validly
existing and in good standing under the laws of the State of New York;
(b) the Property 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 national banking association duly organized,
validly existing and in good standing under the laws of the United
States of America;
(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 Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property 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 have been
duly authorized by all necessary corporate or other action on the part
of the Property Trustee and the Delaware Trustee and do not require
any approval of stockholders of the Property Trustee or the Delaware
Trustee and such execution, delivery and performance will not (i)
violate the Charter or By-laws of the Property Trustee or
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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 included in
the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument
to which the Property 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 Property
Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the
Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Declaration nor the
consummation of any of the transactions by the Property Trustee or
the Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to
any governmental authority or agency under any existing federal law
governing the banking, trust or general powers of the Property Trustee
or the Delaware Trustee, as the case may be, under the laws of the
United States or the State of Delaware (other than the filing of
appropriate certificates in accordance with the Delaware Business
Trust Act);
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in
any court or before any governmental authority, agency or arbitration
board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right,
power and authority of the Property Trustee or the Delaware Trustee,
as the case may be, to enter into or perform its obligations as one of
the Trustees under this Declaration.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the Holders
that the Trust Securities Certificates issued on the Closing Date [and the Trust
Securities Certificates issued in connection with the exercise of any over-
allotment option set forth in the Underwriting Agreement] on behalf of the Trust
have been duly authorized and will have been, duly and validly executed, issued
and delivered by an Administrative Trustee pursuant to the terms and provisions
of, and in accordance with the requirements of, this Declaration and the Holders
will be, as of each such date, entitled to the benefits of this Declaration.
ARTICLE VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
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(a) The duties and responsibilities of the Trustees shall be as expressly
provided by this Declaration and, in addition, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Declaration shall require the Trustees to expend or risk their
own funds or otherwise to incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to 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 8.1.
(b) No provision in this Declaration shall be construed to release an
Administrative Trustee from liability for his own negligent action, his own
negligent failure to act, or his own willful misconduct. To the extent that, at
law or in equity, an Administrative Trustee has duties (including fiduciary
duties) to the Trust or to the Holders, and liabilities relating thereto, such
Administrative Trustee shall not be liable to the Trust or to any Holder 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 Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Holders to replace such other duties
and liabilities of the Administrative Trustees.
(c) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, 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(c)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Declaration or, in the case of the Property Trustee, in the Trust Indenture
Act.
(d) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of judgment
made in good faith by an authorized officer of the Property Trustee,
unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in
Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
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(iii) the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such property in a similar manner as
the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to
the Property Trustee under this Declaration and the Trust Indenture
Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to
Section 3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been cured
or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, written notice of such
exercise to the Holders and the Property Trustee, unless such exercise shall
have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
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
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration the Property
Trustee is required to decide between alternative courses of action
or (ii) in construing any of the provisions of this Declaration the
Property Trustee finds the same ambiguous or
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inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Holders of
Preferred Securities are entitled to vote under the terms of this
Declaration, the Property Trustee shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the
course of action to be taken and the Property Trustee shall take such
action, or refrain from taking such action, as the Property Trustee
shall be instructed in writing to take, or to refrain from taking, by
the Depositor; provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Declaration as it shall deem advisable and in
the best interests of the Holders, in which event the Property Trustee
shall have no liability except for its own bad faith, negligence or
willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or
any rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor 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 Property Trustee shall
have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Declaration at the request
or direction of any of the Holders pursuant to this Declaration,
unless such Holders shall have offered to the Property Trustee
reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance
with such request or direction; provided, however, that, nothing
contained in this Section 8.3(g) shall be taken to relieve the
Property Trustee, upon the occurrence of an
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Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, 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 Holders, but the Property Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its
agents, attorneys, custodians or nominees provided that the Property
Trustee shall be responsible for its own misconduct or negligence with
respect to selection of any agent, attorney, custodian or nominee
appointed by it hereunder;
(j) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder,
the Property Trustee (i) may request instructions from the Holders of
the 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 Property 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 fully protected in acting in accordance with such
instructions;
(k) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Declaration; and
(l) without prejudice to any other rights available to the Property
Trustee under applicable law, when the Property Trustee incurs
expenses or renders services in connection with a Bankruptcy Event,
such expenses (including legal fees and expenses of its counsel) and
the compensation for such services are intended to constitute expenses
of administration under any bankruptcy law or law relating to
creditors rights generally.
No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty. The Delaware Trustee shall have the same rights and
benefits as the Property Trustee under this paragraph and paragraphs (a) through
(l) of this Section.
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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 Depositor of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees 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 bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify,
defend and hold harmless (i) each Trustee in its individual capacity,
(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 (other than income, franchise or other taxes
imposed on amounts paid pursuant to (a) or (b) hereof), penalty,
expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of or in connection with the creation,
existence, operation or termination of the Trust or any act or
omission performed or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on
such Indemnified Person by this Declaration, except that no
Indemnified Person shall be entitled to be indemnified pursuant to
this Section 8.6 in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence or willful misconduct
with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Declaration.
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No Trustee may claim any Lien on any Trust Property as a result of any
amount due pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property 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 Depositor, 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 Depositor 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 Depositor or any Affiliate of the Depositor, 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 Depositor or its Affiliates.
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $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 Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. At the time of appointment, the Property
Trustee must have securities rated in one of the three highest rating categories
by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law, as the same
now exists or as may hereafter be amended, and that shall act through one or
more persons authorized to bind such entity.
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SECTION 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property 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.
The Guarantee and the Indenture shall be deemed to be specifically described in
this Declaration for the purposes of clause (i) of the first proviso contained
in Section 310(b) of the Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an 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 Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as co-
trustee, jointly with the Property 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 Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default shall have occurred and be
continuing, the Property 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 Depositor 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 Depositor.
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 Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and
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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 Property 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 Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property 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 resigning 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 Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act or
omission of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property 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 Holders, except that
no such notice shall be required in the case of resignation of an Administrative
Trustee. 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 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 Debenture Event of Default shall have occurred and be continuing,
any Trustee may be removed at any time by Act of the Common Holder. If a
Debenture Event of Default shall have occurred and be continuing, the Property
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). An Administrative Trustee may be removed by the Common
Holder at any time.
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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 Debenture Event of Default shall have occurred and be
continuing, the Common Holder, by Act of the Common Holder delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Preferred
Holders, by Act of the Holders of a Majority in Liquidation Amount of the
Preferred Securities delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor Relevant
Trustee shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default shall have
occurred and be continuing, the Common Holder by Act of the Common Holder
delivered to the Administrative Trustee shall promptly appoint a successor
Administrative Trustee or Administrative Trustees and such successor
Administrative 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 Holder or the Preferred Holders and accepted appointment in the
manner required by Section 8.11, any Holder who has been a Holder 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 Property Trustee shall give notice of each resignation and each removal
of a Trustee (other than an Administrative Trustee) and each appointment of a
successor Trustee (other than an Administrative Trustee) to all Holders in the
manner provided in Section 10.8 and shall give notice to the Depositor. Each
notice shall include the name of the successor Relevant Trustee and the address
of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Declaration,
in the event any Administrative Trustee or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of the remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees or 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 (if, in the case of a Trustee other than the Property
Trustee, requested by the Depositor) 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)
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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. 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 and upon payment in full of all undisputed amounts then due and
owing to such retiring 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 Property 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 Depositor or Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Preferred Securities), the
Property Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Depositor or the Trust (or any
such other obligor). 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 Trust Property or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
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
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as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its
agents 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 Property
Trustee and, in the event the Property Trustee shall consent to the
making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property 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 Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.14. Reports by Property Trustee.
Within 60 days after March 15 of each year commencing with the first March
15 after the first issuance of Trust Securities pursuant to this Declaration,
the Property Trustee shall transmit by mail to all Holders of Trust Securities
as provided in TIA Section 313(c) a brief report dated as of such March 15 if
and to the extent required by TIA Section 313(a).
SECTION 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and 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 Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314 (c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
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SECTION 8.17. Number of Administrative Trustees.
(a) The number of Administrative Trustees shall be _____, provided that
the Holder of all the Outstanding Common Securities by written instrument may
increase or decrease the number of Administrative Trustees. The Property Trustee
and the Delaware Trustee may be the same Person.
(b) If an Administrative Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Administrative 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 an Administrative Trustee shall not
operate to dissolve, terminate or annul the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy is filled by
the appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Declaration.
(d) The initial Administrative Trustees shall be [____], [____] and
[____]. Except where a requirement for action by a specific number of
Administrative Trustees is expressly set forth in this Declaration, any act
required or permitted to be taken by, and any power of the Administrative
Trustees may be exercised by, or with the consent of, any one such
Administrative Trustee.
SECTION 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of
21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a), including any registration statement
or amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of this Declaration, as set forth herein.
SECTION 8.19. Delaware Trustee.
(a) Notwithstanding any other provision of this Trust Agreement, the
Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any
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of the duties and responsibilities of the Administrative Trustees or
the Property Trustee described in this Declaration. The Delaware
Trustee shall be a trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act.
(b) It is expressly understood and agreed by the parties hereto that in
fulfilling its obligations as Delaware Trustee hereunder on behalf of
the Trust (i) any agreements or instruments executed and delivered by
The Chase Manhattan Bank USA, N.A. are executed and delivered not in
its individual capacity but solely as Delaware Trustee under this
Declaration in the exercise of the powers and authority conferred and
vested in it, (ii) each of the representations, undertakings and
agreements herein made on the part of the Trust is made and intended
not as representations, warranties, covenants, undertakings and
agreements by The Chase Manhattan Bank USA, N.A. in its individual
capacity but is made and intended for the purpose of binding only the
Trust, and (iii) under no circumstances shall The Chase Manhattan Bank
USA, N.A. in its individual capacity be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for
the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Trust Agreement,
except if such breach or failure is due to any gross negligence or
willful misconduct of the Delaware Trustee.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve 45 years
from the Closing Date (the "Expiration Date").
SECTION 9.2. Early Termination.
The Trust shall dissolve upon the first to occur of any of the following
events (an "Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Holder of the Common Securities;
(b) the written direction to the Property Trustee from the Holder of the
Common Securities at any time to dissolve the Trust and, after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law, to distribute Debentures to Holders in exchange for
the Preferred Securities (which direction is optional and wholly
within the discretion of the Holder of the Common Securities);
(c) the redemption of all of the Preferred Securities in connection with
the redemption of all the Debentures; and
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(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the
Trust shall terminate upon the latest to occur of the following:
(a) the distribution by the Property Trustee to Holders 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 Administrative
Trustees, including the performance of any tax reporting obligations
with respect to the Trust or the Holders.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs, or upon the Expiration Date, the Trust shall be liquidated
by the Administrative Trustees as expeditiously as the Administrative Trustees
determine to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, to each Holder a Like
Amount of Debentures, subject to Section 9.4(d). Notice of liquidation shall be
given by the Property 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 Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or
if Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem
appropriate.
(b) Unless Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and the distribution of Debentures to Holders, the
Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall
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establish such procedures as it shall deem appropriate to effect the
distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Unless Section 9.2(c) 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 Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
Administrative Trustees or their agent for exchange, (iii) the Depositor shall
use its best efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange, interdealer quotation system or self-
regulatory organization on which the Preferred Securities are then listed, (iv)
any Trust Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures 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 Debentures) and (v) all rights of Holders holding Trust
Securities will cease, except the right of such Holders to receive Debentures
upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section 9.4, whether
because of an order for dissolution entered by a court of competent jurisdiction
or otherwise, distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, then the Trust Property
shall be liquidated, and the Trust shall be dissolved and wound up by the
Property Trustee in such manner as the Property Trustee determines subject to
applicable law. In such event, on the date of the dissolution of the Trust,
Holders will be entitled to receive out of the assets of the Trust available for
distribution to Holders, 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, 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 pro rata
based upon Liquidation Amounts. The Holder of the Outstanding Common Securities
will be entitled to receive Liquidation Distributions upon any such winding up
pro rata, based upon Liquidation Amount, with Holders of Preferred Securities,
except that, if any Debenture Event of Default shall have occurred and be
continuing at the time of payment of the Liquidation Distribution, the Preferred
Securities shall have a priority over the Common Securities with respect to
payment of any amount of Liquidation Distribution.
(e) Following the Expiration Date or an Early Termination Event and after
the completion of the winding up of the affairs of the Trust pursuant to this
Section 9.4, one of the Trustees shall file a certificate of cancellation with
the Delaware Secretary of State.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except
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pursuant to this Article IX. At the request of the Holder of the Common
Securities, with the consent of the Administrative Trustees and without the
consent of the Holders of the Preferred Securities, the Property Trustee or the
Delaware Trustee, the Trust may merge with or into, consolidate, amalgamate, 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; provided, that (i) such successor entity either (a) expressly assumes all
of the obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities ("Successor Securities") so long as
the Successor Securities rank the same as the Preferred Securities in priority
with respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or 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
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Property Trustee has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor such successor entity will be required
to register as an investment company under the 1940 Act and (viii) the Depositor
owns all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of all Outstanding Preferred
Securities, 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 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 Person to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity, or the
dissolution, liquidation, termination, or the bankruptcy of any Person having an
interest, beneficial or otherwise, in Trust Securities shall not operate to
terminate this Declaration, nor entitle the legal representatives,
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successors or heirs of such Person or any Holder 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 Property
Trustee, Administrative Trustees and the Holder of all the Common Securities,
without the consent of any Holders of Preferred Securities, (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 Debentures are treated as indebtedness of the
Depositor for United States federal income tax purposes, or to ensure that the
Trust will not be taxable as a corporation or will be classified for United
States federal income tax purposes other than a grantor trust at any 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 Holder of Preferred Securities, and
any such amendments of this Declaration shall become effective when notice
thereof is given to the Holders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Declaration may be amended by the Trustees and the Holder of all the Common
Securities with (i) the consent of Holders representing not less than a Majority
in Liquidation Amount of the Preferred Securities 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 cause the Trust to be taxable as a corporation for United States
federal income tax purposes or affect the Trust's exemption from status of an
investment company under the 1940 Act or affect the treatment of the Debentures
as indebtedness of the Depositor for United States federal income tax purposes.
(c) In addition to and notwithstanding any other provision in this
Declaration, without the consent of each affected Holder, this Declaration may
not be amended to (i) change the amount or timing of any Distribution or
otherwise adversely affect the amount of any Distribution required to be made as
of a specified date or (ii) restrict the right of a Holder to institute suit for
the enforcement of any such payment on or after such date; and notwithstanding
any other provision herein, without the unanimous consent of the Holders, this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provision of this Declaration, no Trustee
shall enter into or consent to any amendment to this Declaration which would
cause the Trust to be classified as an association taxable as a corporation for
United States federal income tax purposes or fail or cease to qualify for the
exemption from status of an investment company under the 1940 Act or to be
classified as other than a grantor trust for United States federal income tax
purposes or that would cause the Debentures to fail or cease to be treated as
indebtedness of the Depositor for United States federal income tax purposes.
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(e) Notwithstanding anything in this Declaration to the contrary, without
the consent of the Depositor, this Declaration may not be amended in a manner
which imposes any additional obligation or liability on the Depositor.
(f) If any amendment to this Declaration is made, the Administrative
Trustees shall promptly provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration which affects its own
rights, duties or immunities under this Declaration. The Property 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 and all conditions precedent herein provided for relating to such
action have been met.
SECTION 10.3. Separability.
If 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 HOLDERS, 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 REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS; PROVIDED,
HOWEVER, THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE IN
CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK. THE PROVISIONS OF SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL
NOT APPLY TO THIS TRUST.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day 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 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
SECTION 10.6. Successors.
This Declaration shall be binding upon and shall inure to the benefit of
any successor to the Depositor, the Trust or the Relevant Trustee, including any
successor by operation of law. Except in connection with a transaction that is
permitted under Article Eight of the Indenture and pursuant
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to which the assignee agrees in writing to perform the Depositor's obligations
hereunder, the Depositor shall not assign its obligations hereunder (any
purported assignment in contravention of this Section 10.6 being null and void).
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
Holder or the Depositor may be given or served in writing by deposit thereof,
first-class postage prepaid, in the United States mail, hand delivery or
facsimile transmission, in each case, addressed, (a) in the case of a Holder of
Preferred Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Common Holder or
the Depositor, to UnumProvident Corporation, 1 Fountain Square, Chattanooga,
Tennessee 37402, Attention: General Counsel, facsimile no.: (423) 755-5036.
Such notice, demand or other communication to or upon a Holder shall be deemed
to have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission.
Any notice, demand or other communication which by any provision of this
Declaration is required or permitted to be given or served to or upon the Trust,
the Property Trustee, the Delaware Trustee or the Administrative Trustees shall
be given in writing by deposit thereof, first-class postage prepaid, in the
United States mail, or by hand delivery, in each case, addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee to The Chase Manhattan Bank, 450 West 33rd Street, 15th Floor, New York,
New York 10001, Attention: Corporate Trustee Administration; (b) with respect to
the Delaware Trustee, to The Chase Manhattan Bank USA, N.A., 1201 Market Street,
Wilmington, Delaware 19801, Attention: Corporate Trust Administration; and (c)
with respect to the Administrative Trustees, to them at the address above for
notices to the Depositor, marked "Attention Administrative Trustees of
[UnumProvident Financing Trust __] " Such notice, demand or other communication
to or upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust
or the Property Trustee.
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the Holders
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
Depositor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Holders, that, at the expense of the Depositor, it
shall file an answer with the bankruptcy court or otherwise properly
-53-
contest the filing of such petition by the Depositor against the Trust or the
commencement of such action and raise the defense that the Depositor has agreed
in writing not to take such action and should be 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.
SECTION 10.10. Agreed Tax Treatment of Trust and Trust Securities
The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein the Holder of, and any Person that
acquires a beneficial interest in, such Trust Security intend and agree to treat
the Trust as a grantor trust for United States federal, state and local tax
purposes, and to treat the Trust Securities (including all payments and proceeds
with respect to such Trust Securities) as undivided beneficial ownership
interests in the Trust Property (and payments and proceeds therefrom,
respectively) for United States federal, state and local tax purposes. The
provisions of this Declaration shall be interpreted to further this intention
and agreement of the parties.
SECTION 10.11. Application of Trust Indenture Act.
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is 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 Trust Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 10.12. Acceptance of Terms of Declaration, Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER 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 GUARANTEE AND THE INDENTURE, AND
-54-
SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH HOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH HOLDER AND SUCH OTHERS.
SECTION 10.13. Counterparts.
This Declaration may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same agreement.
[Signatures on Next Page]
-55-
IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated
Declaration as of the date first above written.
UNUMPROVIDENT CORPORATION, as Depositor
By:_____________________________
Name:___________________________
Title:__________________________
THE CHASE MANHATTAN BANK,
not in its individual capacity, but solely in its
capacity as Property Trustee, Paying Agent
and Securities Registrar
By:______________________________
Name:____________________________
Title:___________________________
THE CHASE MANHATTAN BANK USA, N.A.,
not in its individual capacity, but solely in its
capacity as Delaware Trustee
By:______________________________
Name:____________________________
Title:___________________________
By: ___________________________________
_________________________, as Administrative Trustee
By: _______________________________
___________________________, as Administrative Trustee
By: _______________________________
___________________________, as Administrative Trustee
-56-
EXHIBIT A
CERTIFICATE OF TRUST
--------------------
OF
--
[UNUMPROVIDENT FINANCING TRUST __]
---------------------------
THIS CERTIFICATE OF TRUST of [UnumProvident Financing Trust __] (the
"Trust"), dated ___________, 200___, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the business trust being formed hereby is
----
[UNUMPROVIDENT FINANCING TRUST __].
2. Delaware Trustee. The name and business address of the trustee of the
----------------
Trust, with a principal place of business in the State of Delaware, is THE CHASE
MANHATTAN BANK USA, N.A., 1201 Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective upon its
--------------
filing with the Secretary of State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one or
------------
more counterparts.
[SIGNATURE PAGE FOLLOWS]
1
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of
the Act.
THE CHASE MANHATTAN BANK USA, N.A.
not in its individual capacity,
but solely as trustee
By:____________________________
Name:__________________________
Title:_________________________
THE CHASE MANHATTAN BANK,
not in its individual capacity, but solely as trustee
By:____________________________
Name:__________________________
Title:_________________________
___________________________________________
Susan N. Roth, not in
her individual capacity but solely
as trustee
-2-
EXHIBIT B
[Form of Letter of Representations]
__________, 200____
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099
Attention: _______________
General Counsel's Office
Re: [UnumProvident Financing Trust __] ____% Cumulative Trust Preferred
Securities
CUSIP No. ___________________
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 book-entry
portion of the [UnumProvident Financing Trust __] ____% Cumulative Trust
Preferred Securities (the "Preferred Securities"), of [UnumProvident Financing
Trust __], a Delaware business trust (the "Issuer"), created and continued
pursuant to an Amended and Restated Declaration of Trust between UNUMPROVIDENT
CORPORATION ("UnumProvident"), The Chase Manhattan Bank, as Property Trustee,
The Chase Manhattan Bank USA, N.A., as Delaware Trustee, the Administrative
Trustees named therein and the holders, from time to time, of undivided
beneficial interests in the assets of the Issuer. The payment of distributions
on the Preferred Securities, and payments due upon liquidation of Issuer or
redemption of the Preferred Securities, to the extent the Issuer has funds
available for the payment thereof are guaranteed by UnumProvident to the extent
set forth in a Guarantee Agreement dated ___________, 200___ by UnumProvident
with respect to the Preferred Securities. Provident and the Issuer propose to
sell the Preferred Securities to certain Underwriters (the "Underwriters")
pursuant to an Underwriting Agreement dated _______________, 200____ by and
among the Underwriters, the Issuer and Provident, and the Underwriters wish to
take delivery of the Preferred Securities through DTC. The Chase Manhattan Bank
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 Issuer, 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
Underwriters, which is expected to occur on or about __________ __, ____, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the
1
name of DTC's nominee, Cede & Co., representing an aggregate of ____________
Preferred Securities and bearing the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New
York corporation ("DTC"), to Issuer or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede &
Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), 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 Amended and Restated Declaration of Trust provides for the voting
by holders of the Preferred Securities under certain limited circumstances (with
no provision for revocation of consents or votes by subsequent holders). The
Issuer 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 Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event as soon as
possible but at least 5 business days prior to the effective date of such event.
4. In the event of any distribution on, or an offering or issuance of
rights with respect to, the Preferred Securities outstanding, the Issuer 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 Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (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
Issuer 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 Issuer or the Transfer Agent and Registrar will
notify DTC's Dividend Department of such payment 5 business days prior to
-2-
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:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer 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 Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer 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 Issuer 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
"[UnumProvident Financing Trust __] ____% Cumulative Trust Preferred
Securities."
-3-
8. Distribution payments or other cash payments that are part of periodic
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 same-day funds no later than 2:30 p.m. (Eastern Time) on
each payment date (or in accordance with existing arrangements between the
Issuer or the Transfer Agent and Registrar and DTC). Absent any other
arrangements between the Issuer or the Transfer Agent and Registrar and DTC,
such funds shall be wired as follows:
The Chase Manhattan Bank
The Issuer or the Transfer Agent and Registrar shall provide payment information
to a standard announcement service subscribed to by DTC. In the unlikely event
that no such service exists, the Issuer agrees that it or the Transfer Agent and
Registrar shall provide this information directly to DTC in advance of the
record date as soon as the information is available. This information should be
conveyed directly to DTC electronically. If electronic transmission is not
available, absent any other arrangements between the Transfer Agent and DTC,
such information should be sent by telecopy to DTC's Dividend Department at
(212) 709-1723 or (212) 709-1686, and receipt of such notices shall be
confirmed by telephoning (212) 709-1270. Notices to DTC pursuant to the above by
mail or by any other means shall be sent to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
9. DTC shall receive maturity and redemption payments with respect to the
Preferred Securities evidenced by the Global Certificate allocated with respect
to each CUSIP number on the payable date in same-day funds by 2:30 p.m.
(Eastern Time). Absent any other arrangements between the Transfer Agent and
Registrar and DTC, such payments shall be wired as follows:
The Chase Manhattan Bank
in accordance with existing SDFS payment procedures in the manner set forth in
DTC's SDFS Paying Agent Operating Procedures, a copy of which has previously
been furnished to the Transfer Agent and Registrar.
10. DTC shall receive all reorganization payments and CUSIP-level detail
resulting from corporate actions (such as tender offers, remarketings, or
mergers) on the first payable date in same-day funds by 2:30 p.m. (Eastern
Time). Absent any other arrangements between the Transfer Agent and Registrar
and DTC, such payments shall be wired as follows:
The Chase Manhattan Bank
11. DTC may by prior written notice direct the Issuer 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.
-4-
12. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer'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 Issuer 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.
13. DTC may discontinue its services as a securities depository with
respect to the Preferred Securities at any time by giving reasonable notice to
the Issuer and the Transfer Agent and Registrar (at which time DTC will confirm
with the Issuer 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 Issuer
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 Participant 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 Issuer and the Transfer Agent and Registrar, and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
14. In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer 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 Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
15. 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 [UnumProvident Financing Trust __].
Very truly yours,
[UNUMPROVIDENT FINANCING TRUST __]
as Issuer
By:
-------------------------------
Name:
-------------------------------
Administrative Trustee
-6-
THE CHASE MANHATTAN BANK solely in its
capacity as Property Trustee, Transfer
Agent and Registrar
By:
---------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
------------------
Authorized Officer
-6-
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE OTHER THAN IN ACCORDANCE WITH SECTION 5.10
------------------------------------------
OF THE DECLARATION (AS DEFINED BELOW)
-------------------------------------
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1 [_________________]
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
[UNUMPROVIDENT FINANCING TRUST __]
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $_______ PER COMMON SECURITY)
[UnumProvident Financing Trust __] , a business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that UNUMPROVIDENT
CORPORATION, a Delaware corporation (the "Holder"), is the registered owner of (
) common securities of the Trust, representing undivided common beneficial
interests of the Trust and designated the ____% Common Securities (Liquidation
Amount $_______ per Common Security) (the "Common Securities"). Except as
provided in Section 5.10 of the Declaration (as defined below) the Common
Securities are not transferable and any attempted transfer hereof other than in
accordance therewith shall be null and 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 the Trust,
dated as of _________________, 200____, 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.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER AGREES TO BE
BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS THEREUNDER.
This Common Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth in the
Declaration.
1
IN WITNESS WHEREOF, the undersigned Administrative Trustee of the Trust has
executed this certificate as of the ____ day of _________________, 200___.
[UNUMPROVIDENT FINANCING TRUST __]
By:
---------------------------------------------
Name:
---------------------------------------------
Administrative Trustee
-2-
EXHIBIT D
[Form of Expense Agreement]
AGREEMENT AS TO EXPENSES AND LIABILITIES
---------------------------
AGREEMENT, dated as of _________________, 200___, between UNUMPROVIDENT
CORPORATION, a Delaware corporation (the "Corporation"), and [UnumProvident
Financing Trust __], a Delaware business trust (the "Trust").
W I T N E S S E T H :
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from the Corporation and to issue and
sell ____% Cumulative Trust Preferred Securities (the "Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Declaration of the Trust, dated as of
________________, 200___ as the same may be amended from time to time (the
"Declaration"; capitalized terms used herein and not defined herein have the
meanings ascribed to them in the Declaration); and
WHEREAS, the Corporation will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Corporation hereby agrees shall benefit
the Corporation and which purchase the Corporation acknowledges will be made in
reliance upon the execution and delivery of this Agreement, the Corporation and
Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation.
Subject to the terms and conditions hereof, the Corporation hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
1
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force or effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date on which the Debentures
shall have been distributed to the Holders of the Trust Securities as provided
in Article IX of the Declaration; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid in respect of the Preferred Securities, under any Obligation,
under the Guarantee Agreement dated the date hereof between the Corporation and
The Chase Manhattan Bank, as guarantee trustee or under this Agreement for any
reason whatsoever.
SECTION 1.3. Subordination.
The guarantee and other liabilities and obligations of the Corporation
under this Agreement shall constitute unsecured obligations of the Corporation
and shall rank subordinate and junior in right of payment to all Senior Debt (as
defined in the Indenture) of the Corporation to the extent and in the manner set
forth in the Indenture with respect to the Debentures, and the provisions of
Article Fourteen of the Indenture will apply, mutatis mutandis, to the
obligations of the Corporation hereunder. The obligations of the Corporation
hereunder do not constitute Senior Debt (as defined in the Indenture) of the
Corporation.
This Agreement shall be continuing, irrevocable, unconditional and
absolute.
SECTION 1.4. Waiver of Notice.
The Corporation hereby waives notice of acceptance of this Agreement and of
any Obligation to which it applies or may apply, and the Corporation hereby
waives presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 1.5. No Impairment.
The obligations, covenants, agreements and duties of the Corporation under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence
or extension of any kind; or
-2-
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Trust or any of the assets of the Trust. There shall be no obligation
of the Beneficiaries to give notice to, or obtain the consent of, the
Corporation with respect to the happening of any of the foregoing.
SECTION 1.6. Enforcement.
A Beneficiary may enforce this Agreement directly against the Corporation
and the Corporation waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against the Corporation.
SECTION 1.7. Subrogation.
The Corporation shall be subrogated to all rights (if any) of the Trust in
respect of any amounts paid to the Beneficiaries by the Corporation under this
Agreement; provided, however, that the Corporation shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
SECTION 2.1. Assignment.
This Agreement may not be assigned by either party hereto without the
consent of the other, and any purported assignment without such consent shall be
void; provided, however, that, upon any transfer of the Common Securities, this
Agreement shall be assigned and delegated by the Corporation to its successor
with such transfer without any action by either party hereto.
SECTION 2.2. Binding Effect.
This Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3. Amendment.
So long as there shall remain any Beneficiary or any Preferred Securities
of any series shall be outstanding, this Agreement may not be modified or
amended in any manner adverse to such Beneficiary or to the holders of the
Preferred Securities without the consent of such Beneficiary or the holders of
the Preferred Securities, as the case may be.
-3-
SECTION 2.4. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
[UnumProvident Financing Trust __]
c/o UNUMPROVIDENT CORPORATION
1 Fountain Square
Chattanooga, Tennessee 37402
Facsimile No.: (423) 755-5036
Attention: General Counsel
UNUMPROVIDENT CORPORATION
1 Fountain Square
Chattanooga, Tennessee 37402
Facsimile No.: (423) 755-5036
Attention: General Counsel
SECTION 2.4. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
UNUMPROVIDENT CORPORATION
By:
Name:
Title:
- -------------------------------------------------------------------------------
[UNUMPROVIDENT FINANCING TRUST __]
By:
Name:
- -------------------------------------------------------------------------------
Administrative Trustee
-4-
EXHIBIT E
[Form of Preferred Securities Certificate]
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL PREFERRED SECURITIES INSERT--
This Preferred Security is a Global Preferred Securities 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 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 [UnumProvident
Financing Trust __] or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as is requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of The Depository
Trust Company, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein. ]
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P- [___________]
CUSIP NO. ____________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
[UNUMPROVIDENT FINANCING TRUST __]
____% CUMULATIVE TRUST PREFERRED SECURITIES,
(LIQUIDATION AMOUNT $_______ PER PREFERRED SECURITY)
[UnumProvident Financing Trust __], a 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 preferred beneficial
interest in the assets of the Trust and designated the [UnumProvident Financing
Trust __] ____% Cumulative Trust Preferred Securities (Liquidation Amount
$_______ per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer as provided in Section 5.4 of the Declaration
(as
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defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of the Trust, dated as of _________________, 200___, as the
same may be amended from time to time (the "Declaration"), including the
designation of the terms of Preferred Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
UNUMPROVIDENT CORPORATION, a Delaware corporation, and The Chase Manhattan Bank,
as guarantee trustee, dated as of ______________, 200___, (the "Guarantee"), to
the extent provided therein. The Trust will furnish a copy of the Declaration
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
This Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Preferred Securities
Certificate are used with the meanings specified in the Declaration, including
the Exhibits thereto.
BY RECEIPT AND ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER AGREES TO BE
BOUND BY THE DECLARATION AND IS ENTITLED TO THE BENEFITS THEREUNDER.
IN WITNESS WHEREOF, the undersigned Administrative Trustee of the Trust has
executed this certificate as of the ____ day of _______________, 200___.
[UNUMPROVIDENT FINANCING TRUST __]
By:
--------------------------------
Name:
--------------------------------
Administrative Trustee
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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:
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(Sign exactly as your name appears on the other side of this Preferred Security
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 17Ad-15.
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