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Exhibit 4.5
AMENDED AND RESTATED DECLARATION
OF TRUST
Life Re Capital Trust II
Dated as of March __, 1998
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AMENDED AND RESTATED DECLARATION
OF TRUST
TABLE OF CONTENTS
Page
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ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions........................................................................... 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application...................................................... 9
SECTION 2.2 Lists of Holders of Securities........................................................ 9
SECTION 2.3 Reports by the Property Trustee....................................................... 10
SECTION 2.4 Periodic Reports to Property Trustee.................................................. 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent...................................... 10
SECTION 2.6 Events of Default; Waiver............................................................. 10
SECTION 2.7 Event of Default; Notice.............................................................. 12
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.................................................................................. 13
SECTION 3.2 Office................................................................................ 13
SECTION 3.3 Purpose............................................................................... 13
SECTION 3.4 Authority............................................................................. 14
SECTION 3.5 Title to Property of the Trust........................................................ 14
SECTION 3.6 Powers and Duties of the Administrators............................................... 14
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.................................. 17
SECTION 3.8 Powers and Duties of the Property Trustee............................................. 17
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee............................................................................... 20
SECTION 3.10 Certain Rights of the Property Trustee................................................ 21
SECTION 3.11 Delaware Trustee...................................................................... 23
SECTION 3.12 Execution of Documents................................................................ 24
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities................................ 24
SECTION 3.14 Duration of Trust..................................................................... 24
SECTION 3.15 Mergers............................................................................... 24
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities............................................... 26
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SECTION 4.2 Responsibilities of the Sponsor....................................................... 26
SECTION 4.3 Right to Proceed...................................................................... 27
ARTICLE V
TRUSTEES AND ADMINISTRATORS
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee......................................... 27
SECTION 5.2 Delaware Trustee...................................................................... 27
SECTION 5.3 Property Trustee; Eligibility......................................................... 28
SECTION 5.4 Certain Qualifications of Administrators and Delaware
Trustee Generally..................................................................... 29
SECTION 5.5 Administrators........................................................................ 29
SECTION 5.6 Delaware Trustee...................................................................... 30
SECTION 5.7 Appointment, Removal and Resignation of Trustees...................................... 30
SECTION 5.8 Vacancies among Trustees.............................................................. 31
SECTION 5.9 Effect of Vacancies................................................................... 31
SECTION 5.10 Meetings.............................................................................. 32
SECTION 5.11 Delegation of Power................................................................... 32
SECTION 5.12 Merger, Conversion, Consolidation or Succession to
Business.............................................................................. 32
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions......................................................................... 33
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities............................................... 33
SECTION 7.2 Execution and Authentication.......................................................... 34
SECTION 7.3 Form and Dating....................................................................... 35
SECTION 7.4 Registrar, Paying Agent and Exchange Agent............................................ 36
SECTION 7.5 Paying Agent to Hold Money in Trust................................................... 36
SECTION 7.6 Replacement Securities................................................................ 37
SECTION 7.7 Outstanding Capital Securities........................................................ 37
SECTION 7.8 Capital Securities in Treasury........................................................ 38
SECTION 7.9 Temporary Securities.................................................................. 38
SECTION 7.10 Cancellation.......................................................................... 39
SECTION 7.11 CUSIP Numbers......................................................................... 39
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.................................................................. 39
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities................................................................ 40
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SECTION 9.2 Transfer Procedures and Restrictions.................................................. 41
SECTION 9.3 Deemed Security Holders............................................................... 47
SECTION 9.4 Book Entry Interests.................................................................. 47
SECTION 9.5 Notices to Clearing Agency............................................................ 48
SECTION 9.6 Appointment of Successor Clearing Agency.............................................. 48
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES, ADMINISTRATORS OR OTHERS
SECTION 10.1 Liability............................................................................. 48
SECTION 10.2 Exculpation........................................................................... 49
SECTION 10.3 Fiduciary Duty........................................................................ 49
SECTION 10.4 Indemnification....................................................................... 50
SECTION 10.5 Outside Businesses.................................................................... 53
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year........................................................................... 53
SECTION 11.2 Certain Accounting Matters............................................................ 53
SECTION 11.3 Banking............................................................................... 54
SECTION 11.4 Withholding........................................................................... 54
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments............................................................................ 55
SECTION 12.2 Meetings of the Holders; Action by Written Consent.................................... 57
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.................................... 58
SECTION 13.2 Representations and Warranties of Delaware Trustee.................................... 59
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices............................................................................... 59
SECTION 14.2 Governing Law......................................................................... 60
SECTION 14.3 Intention of the Parties.............................................................. 61
SECTION 14.4 Headings.............................................................................. 61
SECTION 14.5 Successors and Assigns................................................................ 61
SECTION 14.6 Partial Enforceability................................................................ 61
SECTION 14.7 Counterparts.......................................................................... 61
FORM OF REVERSE OF SECURITY
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ASSIGNMENT
ANNEX I TERMS OF SECURITIES.................................................................................... I-1
EXHIBIT A-1 FORM OF QUARTERLY INCOME PREFERRED SECURITIES................................................. A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE........................................................... A2-1
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AMENDED AND RESTATED DECLARATION
OF TRUST
OF
LIFE RE CAPITAL TRUST II
March __, 1998
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of March __, 1998, by the Trustees (as defined herein), the Sponsor
(as defined herein), the Administrators (as defined herein) and by the holders,
from time to time, of undivided beneficial interests in the assets of the Trust
to be issued pursuant to this Declaration;
WHEREAS, Life Re Capital Trust II (the "Trust") has been established as
a trust created under the Business Trust Act (as defined herein) pursuant to a
Declaration of Trust dated as of February 10, 1998 (the "Original Declaration")
and a Certificate of Trust executed and filed with the Secretary of State of the
State of Delaware on February 10, 1998, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer (each as hereinafter defined);
WHEREAS, the parties hereto, by this Declaration, amend and restate
each and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
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(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration"
are to this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and Annexes
and Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires;
(f) a term defined in the Indenture (as defined herein) and
the Master Unit Agreement (as defined herein) has the same meaning when used in
this Declaration unless otherwise defined in this Declaration or the context
otherwise requires; and
(g) a reference to the singular includes the plural and vice
versa.
"Administrators" means each of Rodney A. Hawes,
Jacques E. Dubois and W. Weldon Wilson solely in such Person's capacity as
Administrator of the Trust created and continued hereunder and not in such
Person's individual capacity, or such Administrator's successor in interest in
such capacity, or any successor appointed as herein provided.
"Affiliate" has the same meaning as given to that
term in Rule 405 under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent, Registrar or Exchange
Agent.
"Authorized Officer" of a Person means any other
Person that is authorized to legally bind such former Person.
"Bankruptcy Event" means, with respect to any Person:
(a) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of such Person in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any
substantial part of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(b) such Person shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent
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to the entry of an order for relief in an involuntary case under any such law,
or shall consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of such Person of any substantial part of its property, or shall make
any general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due.
"Book Entry Interest" means a beneficial interest in
a Global Security registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday or
a Sunday or a day on which banking institutions in The City of New York or
Wilmington, Delaware, are authorized or required by law or executive order to
close.
"Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Clearing Agency" means an organization registered as
a "Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting
as depositary for the QUIPS and in whose name or in the name of a nominee of
that organization shall be registered a Global Security and which shall
undertake to effect book entry transfers and pledges of the QUIPS.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Time" means the "First Time of Delivery"
under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
"Commission" means the United States Securities and
Exchange Commission as from time to time constituted, or if any time after the
execution of this Declaration such Commission is not existing and performing the
duties now assigned to it under applicable federal securities laws, then the
body performing such duties at such time.
"Common Trust Securities" has the meaning specified
in Section 7.1(a).
"Common Trust Securities Guarantee" means the
guarantee agreement dated as of March __, 1998 of the Sponsor in respect of the
Common Trust Securities.
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"Common Trust Securities Subscription Agreement"
means the Common Trust Securities Subscription Agreement, dated March __, 1998,
by and between the Debenture Issuer and the Trust.
"Company Indemnified Person" means (a) any
Administrator; (b) any Affiliate of any Administrator; (c) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrator; or (d) any officer, employee or agent of the Trust or its
Affiliates.
"Corporate Trust Office" means the office of the
Property Trustee at which the corporate trust business of the Property Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at The Bank of New York, 101
Barclay Street, 21st Floor West, New York, New York 10286.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Life Re Corporation, a
Delaware corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
"Debenture Subscription Agreement" means the
Debenture Subscription Agreement, dated March __, 1998, by and between the
Debenture Issuer and the Trust.
"Debenture Trustee" means The Bank of New York, a New
York banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the % Junior Subordinated
Deferrable Interest Debentures due March __, 2003 of the Debenture Issuer issued
pursuant to the Indenture.
"Default" means an event, act or condition that with
notice or lapse of time, or both, would constitute an Event of Default.
"Definitive QUIPS" shall have the meaning set forth
in Section 7.3(c).
"Delaware Trustee" has the meaning set forth in
Section 5.2.
"Direct Action" shall have the meaning set forth in
Section 3.8(e).
"Distribution" means a distribution payable to
Holders in accordance with Section 6.1.
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"DTC" means The Depository Trust Company, the initial
Clearing Agency.
"Event of Default" in respect of the Securities means
an Event of Default (as defined in the Indenture) that has occurred and is
continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 10.4(b).
"Final Redemption Price" has the meaning set forth in
Section 4 of Annex I hereto.
"Fiscal Year" has the meaning set forth in Section
11.1.
"Global Security" has the meaning set forth in
Section 7.3(a).
"Holder" means a Person in whose name a Security is
registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified
Person or a Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of March __,
1998, between the Debenture Issuer and The Bank of New York, as amended from
time to time.
"Investment Company" means an investment company as
defined in the Investment Company Act.
"Investment Company Act" means the Investment Company
Act of 1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section
3.6(g).
"Like Amount" has the meaning set forth in Section 3
of Annex I hereto.
"Majority in liquidation amount" means, with respect
to the Trust Securities, except as provided in the terms of the QUIPS or by the
Trust Indenture Act, Holder(s) of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding QUIPS
or Holders of outstanding Common Trust Securities voting separately as a class,
who are the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
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liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of
the relevant class.
"Master Unit Agreement" shall mean the Master Unit
Agreement between Life Re Corporation and The Bank of New York, as Unit Agent,
dated as of March ___, 1998.
"Officers' Certificate" means, with respect to any
Person, a certificate signed by two of the following: the Chairman, a Vice
Chairman, the Chief Executive Officer, the President, the Chief Financial
Officer, a Vice President (whether or not designated by a number or a word or
words added before or after such title), the Comptroller, or the Secretary or an
Assistant Secretary of such Person. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration shall include:
(i) a statement that each officer signing the Certificate has
read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Certificate;
(iii) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be an employee of the Sponsor, and who shall be acceptable to
the Property Trustee.
"Participants" shall have the meaning set forth in
Section 7.3(b).
"Paying Agent" has the meaning specified in Section
7.4.
"Payment Amount" has the meaning set forth in Section
6.1.
"Person" means a legal person, including any
individual, corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Property Trustee" has the meaning set forth in
Section 5.3(a).
"Property Trustee Account" has the meaning set forth
in Section 3.8(c).
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"Quorum" means a majority of the Administrators or,
if there are only two Administrators, both of them.
"QUIPS" has the meaning specified in Section 7.1(a).
"QUIPS Guarantee" means the guarantee agreement of
the Sponsor dated as of March __, 1998 in respect of the QUIPS.
"QUIPS Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Registrar" has the meaning set forth in Section 7.4.
"Registration Statements" has the meaning set forth
in Section 3.6(b).
"Related Party" means, with respect to the Sponsor,
any direct or indirect wholly owned subsidiary of the Sponsor or any other
Person that owns, directly or indirectly, 100% of the outstanding voting
securities of the Sponsor.
"Responsible Officer" means, with respect to the
Property Trustee, any vice president, any assistant vice president, any
assistant secretary, any assistant treasurer, any trust officer or assistant
trust officer, or any other officer or assistant officer of the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Securities" or "Trust Securities" means the Common
Trust Securities and the QUIPS.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"Securities Guarantees" means the Common Trust
Securities Guarantee and the QUIPS Guarantee.
"Sponsor" means Life Re Corporation, a Delaware
corporation, or any successor entity resulting from any merger, consolidation,
amalgamation or other business combination, in its capacity as sponsor of the
Trust.
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"Subscription Agreements" means the Common Trust
Securities Subscription Agreement and the Debenture Subscription Agreement.
"Successor Delaware Trustee" has the meaning set
forth in Section 5.7(b)(ii).
"Successor Entity" has the meaning set forth in
Section 3.15(b)(i).
"Successor Property Trustee" has the meaning set
forth in Section 3.8(f).
"Successor Securities" has the meaning set forth in
Section 3.15(b)(i)(B).
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"10% in liquidation amount" means, with respect to
the Trust Securities, except as provided in the terms of the QUIPS or by the
Trust Indenture Act, Holder(s) of outstanding Trust Securities voting together
as a single class or, as the context may require, Holders of outstanding QUIPS
or Holders of outstanding Common Trust Securities voting separately as a class,
who are the record owners of 10% or more of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax
regulations, including temporary and proposed regulations, promulgated under the
Code by the United States Treasury, as such regulations may be amended from time
to time (including corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has
signed this Declaration as a trustee, so long as such Person shall continue in
office in accordance with the terms hereof, and all other Persons who may from
time to time be duly appointed, qualified and serving as Trustees in accordance
with the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
"Underwriting Agreement" means the Underwriting
Agreement among Life Re Corporation, the Trust and the underwriters named
therein, dated as of March __, 1998, for the initial offering and sale of the
Units.
"Units" means __% Adjustable Conversion-rate Equity
Security Units initially consisting of (i) a purchase contract under which the
holder will purchase from Life
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Re Corporation a number of shares of its capital stock equal to the Settlement
Rate (as defined in the Master Unit Agreement) and (ii) QUIPS.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Administrators on behalf of
the Trust shall provide the Property Trustee, unless the Property Trustee is
Registrar for the Securities (i) on a quarterly basis on each record date for
payment of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders") as of such record date, and (ii) at such other times as the Property
Trustee may request in writing, within 30 days of receipt by the Trust, of such
written request, a List of Holders as of a date not more than 15 days prior to
the time such List of Holders is furnished to the Property Trustee. The Property
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
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SECTION 2.3 Reports by the Property Trustee.
If required by Section 313(a) of the Trust Indenture Act, the
Property Trustee shall, within sixty days after each ____ __, following the date
of this Indenture, commencing ___ __, 1999, deliver to the Holders of QUIPS a
brief report, dated as of such ___ __, 1999, which complies with the provisions
of such Section 313(a). The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrators on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as are required by Section 314 of the Trust Indenture Act (if any)
and the compliance certificate required by Section 314 of the Trust Indenture
Act in the form, in the manner and at the times required by Section 314 of the
Trust Indenture Act. Delivery of such documents, reports and information to the
Trustee is for informational purposes only and the Property Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Trust's compliance with any of its covenants hereunder (as to which the Property
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Administrators on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent 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 may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of QUIPS
may, by vote, on behalf of the Holders of all of the QUIPS, waive any past Event
of Default in respect of the QUIPS and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in aggregate principal amount of the holders of the Debentures (a
"Super Majority") to be waived under the Indenture, the Event of Default under
the Declaration may only be waived by the vote of the Holders of at least the
proportion in aggregate liquidation amount of the QUIPS that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
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The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the QUIPS
arising therefrom shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other default
or an Event of Default with respect to the QUIPS or impair any right consequent
thereon. Any waiver by the Holders of the QUIPS of an Event of Default with
respect to the QUIPS shall also be deemed to constitute a waiver by the Holders
of the Common Trust Securities of any such Event of Default with respect to the
Common Trust Securities for all purposes of this Declaration without any further
act, vote, or consent of the Holders of the Common Trust Securities.
The Holders of a Majority in liquidation amount of the QUIPS
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee or to direct the
exercise of any trust or power conferred upon the Property Trustee, including
the right to direct the Property Trustee to exercise the remedies available to
it as holder of the Debentures; provided, however, that (subject to the
provisions of Section 3.9) the Property Trustee shall have the right to decline
to follow any such direction if the Property Trustee shall determine that the
action so directed would be unjustly prejudicial to the Holders not taking part
in such direction or if the Property Trustee, being advised by counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Property Trustee, in good faith, by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees
and/or Responsible Officers, shall determine that the action or proceedings so
directed would involve the Property Trustee in personal liability. If the
Property Trustee fails to enforce its rights under the Debentures after the
Holders of a Majority in liquidation amount of the QUIPS have so directed the
Property Trustee, a holder of record of such QUIPS (or, for as long as QUIPS
underlie Units, a holder of record of Units) may, to the fullest extent
permitted by law, institute a legal proceeding against the Debenture Issuer to
enforce the Property Trustee's rights under the Debentures without first
instituting any legal proceeding against the Property Trustee or any other
Person.
(b) The Holders of a Majority in liquidation amount of the
Common Trust Securities may, by vote, on behalf of the Holders of all of the
Common Trust Securities, waive any past Event of Default with respect to the
Common Trust Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where
the Holders of the Common Trust Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this Section 2.6(b), the
Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority
to be waived, except where the Holders of the Common Trust Securities are deemed
to have waived such Event of Default under the Declaration as provided below in
this Section 2.6(b), the Event of Default under the Declaration may only be
waived by the vote of the Holders of at least the proportion
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in aggregate liquidation amount of the Common Trust Securities that the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Trust Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Trust Securities and its consequences until all Events of Default with
respect to the QUIPS have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the QUIPS and only the Holders of the QUIPS will have the right to direct the
Property Trustee in accordance with the terms of the Securities. The foregoing
provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act. Subject
to the foregoing provisions of this Section 2.6(b), upon such waiver, any such
default shall cease to exist and any Event of Default with respect to the Common
Trust Securities arising therefrom shall be deemed to have been cured for every
purpose of this Declaration, but no such waiver shall extend to any subsequent
or other default or Event of Default with respect to the Common Trust Securities
or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the QUIPS, constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.6(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of a default, transmit by mail, first class postage prepaid, to the
Holders, notices of all defaults with respect to the Securities actually known
to a Responsible Officer of the Property Trustee, unless such defaults have been
cured before the giving of such notice (the term "defaults" for the purposes of
this Section 2.7(a) being hereby defined to be an Event of Default as defined in
the Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures, the Property Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 5.01(a), 5.01(b) and
5.01(c) of the Indenture; or
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(ii) any default as to which the Property Trustee
shall have received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Declaration shall have
actual knowledge.
(c) Within ten Business Days after the occurrence of any Event
of Default actually known to the Property Trustee, the Property Trustee shall
transmit notice of such Event of Default to the holders of the QUIPS, the
Administrators and the Sponsor, unless such Event of Default shall have been
cured or waived. The Sponsor and the Administrators shall file annually with the
Property Trustee a certification as to whether or not they are in compliance
with all the conditions and covenants applicable to them under this Declaration.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Life Re Capital Trust II" as such name may
be modified from time to time by the Administrators following written notice to
the Holders of Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the Administrators.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Life
Re Corporation, 969 High Ridge Road, Stamford, Connecticut 06905. On ten
Business Days written notice to the Property Trustee, the Delaware Trustee and
the Holders of Securities, the Administrators may designate another principal
office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities, (b) use the proceeds from the sale of the
Securities to acquire the Debentures, and (c) except as otherwise limited
herein, to engage in only those other activities necessary or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, mortgage or pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States Federal income tax purposes as a grantor
trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Administrators shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Administrators or any of them in accordance with their
powers shall constitute the act of and serve to bind the Trust and an
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action taken by the Property Trustee on behalf of the Trust in accordance with
its powers shall constitute the act of and serve to bind the Trust. In dealing
with the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration. The Administrators shall have
only those ministerial duties set forth herein with respect to accomplishing the
purposes of the Trust and are not intended to be trustees or fiduciaries with
respect to the Trust or the Holders. The Property Trustee shall have the right,
but shall not be obligated except as provided in Section 3.6, to perform those
duties assigned to the Administrators.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 3.6 Powers and Duties of the Administrators.
The Administrators shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this
Declaration; provided, however, that except, in the case of (i) and (ii), as
contemplated in Section 7.1(a), (i) the Trust may issue no more than one series
of QUIPS and no more than one series of Common Trust Securities, (ii) there
shall be no interests in the Trust other than the Securities, and (iii) the
issuance of Securities shall be limited to a simultaneous issuance of both QUIPS
and Common Trust Securities at the Closing Time;
(b) in connection with the registration, issue and sale of the
QUIPS, to:
(i) execute on behalf of the Trust, (a) a
registration statement, including pre-effective or post-effective amendments to
such registration statement and any and all amendments to registration
statements filed pursuant to Rule 462(b) promulgated under the Securities Act,
relating to the registration under the Securities Act, of the Securities (the
"1933 Act Registration Statement"), and (b) a registration statement on Form 8-A
or other appropriate form (the "1934 Act Registration Statement" and together
with the 1933 Act Registration Statement, the "Registration Statements")
(including all pre-effective and post-effective amendments thereto) relating to
the registration of the Securities of the Trust under the Exchange Act;
(ii) execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the Sponsor,
on behalf of the Trust, may deem necessary or desirable to register the
Securities under the securities or "Blue Sky" laws of any applicable
jurisdiction;
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(iii) execute a listing application and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to permit the QUIPS (or Units) to trade or be
quoted or listed in or on the New York Stock Exchange or any other securities
exchange, quotation system or the Nasdaq National Market;
(iv) execute, deliver and perform on behalf of the
Trust such underwriting or purchase agreements with one or more underwriters,
purchasers or agents relating to the offering of the Securities as the Sponsor,
on behalf of the Trust, may deem necessary or desirable; and
(v) execute and deliver letters, documents or
instruments with DTC and other Clearing Agencies relating to the QUIPS.
(c) to acquire the Debentures with the proceeds of the sale of
the QUIPS and the Common Trust Securities; provided, however, that the
Administrators shall cause legal title to the Debentures to be held of record in
the name of the Property Trustee for the benefit of the Holders;
(d) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of QUIPS and Holders of Common Trust Securities as to
such actions and applicable record dates;
(e) to take all actions and perform such duties as may be
required of the Administrators pursuant to the terms of the Securities;
(f) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(g) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(h) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(i) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Administrator;
(j) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
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(k) to act as, or appoint another Person to act as, Registrar
and Exchange Agent for the Securities or to appoint a Paying Agent for the
Securities as provided in Section 7.4 except for such time as such power to
appoint a Paying Agent is vested in the Property Trustee;
(l) to give prompt written notice to the Property Trustee and
to Holders of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(m) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(n) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the QUIPS or to
enable the Trust to effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with this
Declaration, the certificate of trust of the Trust or with applicable law, that
the Administrators determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this Section 3.6 (as long
as such action does not materially adversely affect the interests of the Holders
of the Securities), including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment Company Act;
(ii) causing the Trust not to be classified for
United States Federal income tax purposes as an association taxable as a
corporation or as other than a grantor trust;
(iii) cooperating with the Debenture Issuer to ensure
that the Debentures will be treated as indebtedness of the Debenture Issuer for
United States Federal income tax purposes; and
(p) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrators, on behalf of
the Trust.
The Administrators must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3 and with the intentions of the parties set
forth in Section 14.3, and the Administrators shall not take any action that is
inconsistent with the purposes and functions of the Trust and intentions of the
parties set forth in Section 3.3 and Section 14.3, respectively.
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Subject to this Section 3.6, the Administrators shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Administrators pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall not, engage in any activity other than as required or
authorized by this Declaration. The Trust shall not and the Trustees (including
the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii) possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Debentures, execute mortgages or pledge any of its
assets;
(v) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration or
Annex I, (A) direct the time, method and place of conducting any proceeding with
respect to any remedy available to the Debenture Trustee, or exercising any
trust or power conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under the Indenture, (C)
exercise any right to rescind or annul any declaration that the principal of all
the Debentures shall be due and payable, or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required, unless the Trust shall have received an opinion of
counsel experienced in such matters to the effect that such action will not
cause more than an insubstantial risk that for United States Federal income tax
purposes the Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Holders. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who
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may hereafter be appointed as Property Trustee in accordance with Section 5.7.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Administrators or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders and, upon
the receipt of payments of funds made in respect of the Debentures held by the
Property Trustee, deposit such funds into the Property Trustee Account and make
payments to the Holders of the QUIPS and Holders of the Common Trust Securities
from the Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in accordance
with this Declaration. The Property Trustee Account shall be maintained by the
Property Trustee with The Bank of New York (in its separate corporate capacity
and not in its capacity as Property Trustee) in its trust department;
(ii) engage in such ministerial activities as shall
be necessary or appropriate to effect the repurchase or redemption of the
Securities to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by
the Administrators in accordance with the terms of the Securities, engage in
such ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the occurrence of
certain events.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of this Declaration and the Securities.
(e) Subject to Section 3.9(a), the Property Trustee may take
any Legal Action which arises out of or in connection with an Event of Default
of which a Responsible Officer of the Property Trustee has actual knowledge or
the Property Trustee's duties and obligations under this Declaration or the
Trust Indenture Act and if such Property Trustee shall have failed to take such
Legal Action, the Holders of the QUIPS, to the fullest extent permitted by
applicable law, may take such Legal Action, to the same extent as if such
Holders of QUIPS held an aggregate principal amount of Debentures equal to the
aggregate liquidation amount of such QUIPS, without first proceeding against the
Property Trustee or the Trust; provided however, that if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay the principal of or premium, if any, or interest on the
Debentures on the date such principal, premium, if any, or interest is otherwise
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payable (after giving effect to any permitted deferral of payment of such
interest), then a Holder of QUIPS (or, for so long as QUIPS underlie Units, a
holder of record of Units) may directly institute a proceeding against the
Debenture Issuer for enforcement of payment to such Holder of the principal of
or premium, if any, or interest on the Debentures having a principal amount
equal to the aggregate liquidation amount of the QUIPS of such Holder (or
underlying such Holder's Units) (a "Direct Action") on or after the respective
due date specified in the Debentures. In connection with such Direct Action, the
rights of the Holders of the Common Trust Securities will be subrogated to the
rights of such Holder of QUIPS (or Units) to the extent of any payment made by
the Debenture Issuer to such Holder of QUIPS (or Units) in such Direct Action;
provided, however, that no such subrogation right may be exercised so long as an
Event of Default has occurred and is continuing. Except as provided in the
preceding sentences, the Holders of QUIPS will not be able to exercise directly
any other remedy available to the holders of the Debentures.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders pursuant to the terms of
the Securities; or
(ii) a Successor Property Trustee has been appointed
and has accepted that appointment in accordance with Section 5.7 (a "Successor
Property Trustee").
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property Trustee
shall, for the benefit of Holders, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this Declaration
(including Annex I) and the terms of the Securities.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent,
the Property Trustee may authorize one or more Persons to act as additional
Paying Agents and to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
such additional Paying Agent may be removed by the Property Trustee at any time
the Property Trustee remains as Paying Agent and a successor Paying Agent or
additional Paying Agents may be (but are not required to be) appointed at any
time by the Property Trustee.
(j) Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the
Administrators set forth in Section 3.6.
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The Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3 and with the intentions of the parties set
forth in Section 14.3, and the Property Trustee shall not take, nor shall the
Sponsor or any Administrator direct the Property Trustee to take, any action
that is inconsistent with the purposes and functions of the Trust and intentions
of the parties set out in Section 3.3 and Section 14.3, respectively.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and in the Securities and no implied covenants shall be read
into this Declaration against the Property Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) of
which a Responsible Officer of the Property Trustee has actual knowledge, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the
Property Trustee shall be determined solely by the express provisions of this
Declaration and in the Securities and the Property Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Declaration and in the Securities, and no implied covenants or
obligations shall be read into this Declaration against the Property Trustee;
and
(B) in the absence of bad faith on the part
of the Property Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Property Trustee and
conforming to the requirements of this Declaration; provided, however, that in
the case of any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee, the Property
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent in
ascertaining the pertinent facts;
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(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the QUIPS or the Common Trust Securities, as applicable,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require
the Property Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect to
the custody, safe keeping and physical preservation of the Debentures and the
Property Trustee Account shall be to deal with such property in a similar manner
as the Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property Trustee
under this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for
any interest on any money received by it except as it may otherwise agree in
writing with the Sponsor, and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the Property
Trustee Account maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrators or the Sponsor with their
respective duties under this Declaration, nor shall the Property Trustee be
liable for any default or misconduct of the Administrators or the Sponsor.
SECTION 3.10 Certain Rights of the Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, opinion of counsel, written representation of Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented by the proper party or
parties;
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(ii) any direction or act of the Sponsor or the
Administrators contemplated by this Declaration may be sufficiently evidenced by
an Officers' Certificate;
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Sponsor or the Administrators;
(iv) the Property Trustee shall have no duty to see
to any recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities laws)
or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or
other experts of its selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of such
experts' area of expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice or opinion, such counsel may be
counsel to the Sponsor or any of its Affiliates, and may include any of its
employees. The Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any Holder, unless such Holder shall
have provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the costs, expenses (including
reasonable attorneys' fees and expenses and the expenses of the Property
Trustee's agents, nominees or custodians) and liabilities that might be incurred
by it in complying with such request or direction, including such reasonable
advances as may be requested by the Property Trustee provided, that, nothing
contained in this Section 3.10(a)(vi) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Property Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the Property Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
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(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be required to
inquire as to the authority of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Property Trustee's or its agent's
taking such action;
(x) whenever in the administration of this
Declaration the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the Holders
which instructions may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be entitled to direct the Property
Trustee under the terms of the Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall be protected
in conclusively relying on or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration;
(xii) the Property Trustee shall not be liable for
any action taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Declaration; and
(xiii) the Property Trustee shall not be deemed to
have notice of any Default or Event of Default unless a Responsible Officer of
the Property Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the Property Trustee at
the Principal Office of the Property Trustee, and such notice references the
QUIPS and this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrators or the Property
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Trustee described in this Declaration. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act and taking
such actions as are required to be taken by the Delaware Trustee under the
Business Trust Act.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or
applicable law, any Administrator is authorized to execute on behalf of the
Trust any documents that the Administrators have the power and authority to
execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions of
Article VIII hereof, shall have existence for seven years from February 10,
1998.
SECTION 3.15 Mergers.
(a) The Trust may not merge or convert with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
Person, except as described in Section 3.15(b) and (c) or Section 3 of Annex I.
(b) The Trust may, at the request of the Holders of a Majority
in liquidation amount of the Common Trust Securities and without the consent of
the other Holders, the Delaware Trustee or the Property Trustee, merge or
convert with or into, consolidate, amalgamate, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations
of the Trust with respect to the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the Securities (the "Successor
Securities") so long as the
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Successor Securities rank the same as the Securities rank with respect to
Distributions and payments upon liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the Property
Trustee as the Holder of the Debentures;
(iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the QUIPS are then
listed or quoted, if any;
(iv) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
QUIPS (including any Successor Securities) or Units to be downgraded by any
nationally recognized statistical rating organization, if then so rated;
(v) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of Securities
(including any Successor Securities) in any material respect (other than with
respect to any dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose
substantially identical to that of the Trust;
(vii) prior to such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Sponsor has received an opinion of an independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of Securities
(including any Successor Securities) in any material respect (other than with
respect to any dilution of the Holders' interest in the new entity);
(B) following such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor the Successor Entity will be required to register as an Investment
Company; and
(C) following such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Trust or the Successor Entity will continue to be classified as a grantor trust
for United States Federal income tax purposes.
(viii) the Sponsor or any permitted successor or
assignee 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 QUIPS Guarantee and the Common
Trust Securities Guarantee.
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(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge or convert with or into, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, any other entity or permit any
other entity to consolidate, amalgamate, merge or convert with or into, or
replace it if such consolidation, amalgamation, merger, conversion, replacement,
conveyance, transfer or lease would cause the Trust or the Successor Entity to
be classified as an association taxable as a corporation or as other than a
grantor trust for United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Trust Securities.
At the Closing Time, the Sponsor will purchase all of the
Common Trust Securities then issued by the Trust, in an amount at least equal to
3% of the total capital of the Trust, at the same time as the QUIPS are issued
and sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the QUIPS, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities (and any actions taken by the Sponsor in furtherance of the
following prior to the date of this Declaration are hereby ratified and
confirmed in all respects):
(a) to prepare and file with the Commission and to execute, in
the case of the Registration Statements, on behalf of the Trust, (a) the 1933
Act Registration Statement, including pre-effective or post-effective amendments
to such registration statement and any and all amendments to such registration
statement filed pursuant to Rule 462(b) promulgated under the Securities Act,
relating to the registration under the Securities Act of the Securities, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Securities required to be filed pursuant to the Securities Act, and (c) the 1934
Act Registration Statement (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Securities of the Trust
under the Exchange Act;
(b) to determine the jurisdictions in which to take
appropriate action to qualify or register for sale all or part of the QUIPS and
to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable to register the Securities and in order to comply
with the securities or "Blue Sky" laws of any applicable jurisdiction;
(c) to prepare, execute and file a listing application and all
other applications, statements, certificates, agreements and other instruments
as shall be necessary or
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desirable to permit the QUIPS to trade or be quoted or listed in or on the New
York Stock Exchange or any other securities exchange, quotation system or the
Nasdaq National Market;
(d) to negotiate the terms of, and execute, the Underwriting
Agreement and the Subscription Agreements, and to enter into and execute and
deliver the same on behalf of the Trust; and
(e) notwithstanding anything to the contrary contained herein,
the Trust shall be authorized to issue and sell the QUIPS at an offering price
per QUIPS to be determined by the Sponsor in its sole and absolute discretion,
including, without limitation, at an offering price that is less than the
liquidation amount of $1,000 per QUIPS (the "Liquidation Amount"), which
offering price shall be specified in the Prospectus relating to the Securities,
and the Common Trust Securities shall be issued and sold at an offering price
per Common Trust Security that is equal to the offering price per QUIPS.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of QUIPS,
in the event that a failure of the Trust to pay Distributions on the QUIPS is
attributable to the failure of the Debenture Issuer to pay interest or principal
on the Debentures, to institute a proceeding directly against the Debenture
Issuer for enforcement of its payment obligations on the Debentures.
ARTICLE V
TRUSTEES AND ADMINISTRATORS
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee.
The number of Trustees initially shall be two (2), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees
and Administrators; and
(b) after the issuance of any Securities, the number of
Trustees and Administrators may be increased or decreased by vote of the Holders
of a Majority in liquidation amount of the Common Trust Securities voting as a
class at a meeting of the Holders of the Common Trust Securities; provided,
however, that, there shall be a Delaware Trustee if required by Section 5.2; and
there shall be one Trustee who shall be the Property Trustee, and such Trustee
may also serve as Delaware Trustee if it meets the applicable requirements.
Notwithstanding the above, 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 any jurisdiction in which any part of the Trust's property may
at the time be located, the Holders of a Majority in liquidation amount of the
Common Trust Securities acting as a class at a meeting of the Holders of the
Common Trust Securities, and the Administrators shall have
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power to appoint one or more persons either to act as a co-trustee, jointly with
the Property Trustee, of all or any part of the Trust's property, or 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 such capacity any property, title, right or power deemed necessary or
desirable, subject to the provisions of this Declaration. In case an Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law; provided that, if the Property Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the "Property
Trustee") which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a Person organized and doing business under
the laws of the United States of America or any State or Territory thereof or of
the District of Columbia, or a Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia authority. If
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 5.3(a)(ii), the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the
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Holder of the Common Trust Securities (as if it were the obligor referred to in
Section 310(b) of the Trust Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
(d) The QUIPS Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street
21st Floor West
New York, NY 10286
Attention: Corporate Trust Trustee Administration
SECTION 5.4 Certain Qualifications of Administrators and Delaware Trustee
Generally.
Each Administrator and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
SECTION 5.5 Administrators.
The initial Administrators shall be:
Rodney A. Hawes, Jr.
c/o Life Re Corporation
969 High Ridge Road
Stamford, CT 06905
Jacques E. Dubois, Jr.
c/o Life Re Corporation
969 High Ridge Road
Stamford, CT 06905
W. Weldon Wilson
c/o Life Re Corporation
969 High Ridge Road
Stamford, CT 06905
(a) Except as expressly set forth in this Declaration and
except if a meeting of the Administrators is called with respect to any matter
over which the Administrators have power to act, any power of the Administrators
may be exercised by, or with the consent of, any one such Administrator. W.
Weldon Wilson is not a Trustee.
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(b) An Administrator may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Administrators
have power and authority to cause the Trust to execute pursuant to Section 3.6.
(c) The Holders of a Majority in liquidation amount of the
Common Trust Securities may appoint or remove any Administrator without cause at
any time.
(d) An Administrator appointed to office shall hold office
until his successor shall have been appointed or until his death, removal or
resignation. Any Administrator may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Administrator
and delivered to the Sponsor and the Property Trustee, which resignation shall
take effect upon such delivery or upon such later date as is specified therein.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, DE 19711
Attention: Corporate Trust Department
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b) and to Section 6(b) of Annex I
hereto, Trustees may be appointed or removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred
and be continuing after the issuance of any Securities, by vote of the Holders
of a Majority in liquidation amount of the Common Trust Securities voting as a
class at a meeting of the Holders of the Common Trust Securities; and
(iii) if an Event of Default shall have occurred and
be continuing after the issuance of the Securities, with respect to the Property
Trustee or the Delaware Trustee only, by vote of Holders of a Majority in
liquidation amount of the QUIPS voting as a class at a meeting of Holders of the
QUIPS.
(b)(i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Property Trustee has
been appointed and has
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accepted such appointment by written instrument executed by such Successor
Property Trustee and delivered to the Administrators and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall
not be removed in accordance with Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections 5.2 and
5.4 (a "Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Administrators and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as
the Property Trustee shall be effective:
(A) until a Successor Property Trustee has
been appointed and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to the Holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as
the Delaware Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holders of the Common Trust Securities shall use their
best efforts to promptly appoint a Successor Delaware Trustee or Successor
Property Trustee, as the case may be, if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
5.7.
(e) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.7 within 60 days after delivery of an instrument of resignation or
removal, the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may petition, at the expense of the Sponsor, any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
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(f) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Trustees or, if there
are more than two, a majority of the Trustees shall be conclusive evidence of
the existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust. Whenever a
vacancy in the number of Trustees shall occur, until such vacancy is filled by
the appointment of a Trustee in accordance with Section 5.7, the Property
Trustee shall have all the powers granted to the Trustees and shall discharge
all the duties imposed upon the Trustees by this Declaration.
SECTION 5.10 Meetings.
If there is more than one Administrator, meetings of the
Administrators shall be held from time to time upon the call of any
Administrator. Regular meetings of the Administrators may be held at a time and
place fixed by resolution of the Administrators. Notice of any in-person
meetings of the Administrators shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight courier) not less
than 24 hours before such meeting. Notice of any telephonic meetings of the
Administrators or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief
statement of the time, place and anticipated purposes of the meeting. The
presence (whether in person or by telephone) of an Administrator at a meeting
shall constitute a waiver of notice of such meeting except where an
Administrator attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action of
the Administrators may be taken at a meeting by vote of a majority of the
Administrators present (whether in person or by telephone) and eligible to vote
with respect to such matter, provided that a Quorum is present, or without a
meeting by the unanimous written consent of the Administrators. In the event
there is only one Administrator, any and all action of such Administrator shall
be evidenced by a written consent of such Administrator.
SECTION 5.11 Delegation of Power.
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(a) Any Trustee or Administrator may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6; and
(b) the Trustees shall have power to delegate from time to
time to such of their number or to other Persons the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Trustees or otherwise as the Trustees may deem expedient, to the extent
such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee, as
the case may be, that is not a natural person, may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Property Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any Person succeeding to all
or substantially all the corporate trust business of the Property Trustee or the
Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, hereunder, provided such
Person shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Each Holder shall receive Distributions pro rata in accordance
with the applicable terms of such Holder's Securities. If and to the extent that
the Debenture Issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Sums (as defined in the
Indenture)), premium and/or principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a distribution (a "Distribution") of the Payment Amount to
Holders in accordance with the respective terms of the Securities held by them.
In the event there is any money or other property held by or for the Trust that
is not accounted for hereunder, such property shall be distributed pro rata
among the Holders of Securities on the next Distribution Date.
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrators shall on behalf of the Trust issue one
class of securities representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Annex I (the "QUIPS") and one
class of common securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the "Common
Trust Securities"). The Trust shall issue no securities or other interests in
the assets of the Trust other than the QUIPS and the Common Trust Securities and
the aggregate liquidation amount of all Securities issued by the Trust and
outstanding at any time shall not exceed $_______________.
(b) The QUIPS rank pari passu and payment thereon shall be
made pro rata with the Common Trust Securities except that, where an Event of
Default has occurred and is continuing, the rights of Holders of the Common
Trust Securities to payment in respect of Distributions and payments upon
liquidation, redemption, repurchase and otherwise are subordinated to the rights
to payment of the Holders of the QUIPS.
(c) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(d) Upon issuance of the QUIPS as provided in this
Declaration, the QUIPS so issued shall be deemed to be validly issued, fully
paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a
QUIPS Beneficial Owner in accordance with the terms of this Declaration, shall
be deemed to have expressly assented and agreed to the terms of, and shall be
bound by, this Declaration and the QUIPS Guarantee.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by
one or more Administrators. Such signature may be the manual or facsimile
signature of any Administrator. In case any Administrator of the Trust who shall
have signed any of the Securities shall cease to be such Administrator before
the Securities so signed shall be delivered by the Trust, such Securities
nevertheless may be delivered as though the person who signed such Securities
had not ceased to be such Administrator; and any Securities may be signed on
behalf of the Trust by such persons who, at the actual date of execution of such
Security, shall be the Administrators of the Trust, although at the date of the
execution and delivery of the Declaration any such person was not such a
Administrator.
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(b) A Common Trust Security shall be valid upon execution by
an Administrator without any act of the Property Trustee. A QUIPS shall not be
valid until authenticated by the manual signature of an authorized signatory of
the Property Trustee. Such signature shall be conclusive evidence that the QUIPS
has been authenticated under this Declaration.
Upon a written order of the Trust signed by one Administrator,
the Property Trustee shall authenticate the QUIPS for original issue. The
Property Trustee may appoint an authenticating agent acceptable to the Trust to
authenticate QUIPS. An authenticating agent may authenticate QUIPS whenever the
Property Trustee may do so. Each reference in this Declaration to authentication
by the Property Trustee includes authentication by such agent. An authenticating
agent has the same rights as the Property Trustee hereunder with respect to the
Sponsor or an Affiliate. The aggregate number of QUIPS outstanding at any time
shall not exceed the number set forth in the Terms in Annex I hereto except as
provided in Section 7.6.
SECTION 7.3 Form and Dating.
The QUIPS and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the Common
Trust Securities shall be substantially in the form of Exhibit A-2, each of
which is hereby incorporated in and expressly made a part of this Declaration.
Certificates representing the Securities may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrators, as evidenced by their execution thereof. The Securities may
have letters, CUSIP or other numbers, notations or other marks of identification
or designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Trust is subject, if any, or usage (provided that
any such notation, legend or endorsement is in a form acceptable to the Trust).
The Trust at the direction of the Sponsor shall furnish any such legend not
contained in Exhibit A-1 to the Property Trustee in writing. Each QUIPS shall be
dated the date of its authentication. The terms and provisions of the Securities
set forth in Annex I and the forms of Securities set forth in Exhibits A-1 and
A-2 are part of the terms of this Declaration and to the extent applicable, the
Property Trustee and the Sponsor, by their execution and delivery of this
Declaration, expressly agree to such terms and provisions and to be bound
thereby.
(a) Global Securities. As long as QUIPS constitute Pledged
Securities (as defined in the Master Unit Agreement), the QUIPS will be
represented in the form of one permanent global security in definitive, fully
registered form without distribution coupons with the global legend set forth in
Exhibit A-1 hereto (a "Global Security"), which shall be deposited on behalf of
the holders of the Units with the Property Trustee, at its New York office, as
custodian for the Clearing Agency, and registered in the name of the Clearing
Agency or a nominee of the Clearing Agency, duly executed by the Trust and
authenticated by the Property Trustee as hereinafter provided. The number of
QUIPS represented by the Global Security may from time to time be increased or
decreased by adjustments made on the records of the Property Trustee and the
Clearing Agency or its nominee as hereinafter provided. If the
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QUIPS cease to constitute Pledged Securities, the QUIPS may be represented by
one or more permanent global securities in definitive, full registered form.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply
only to the Global Security and such other QUIPS in global form as may be
authorized by the Trust to be deposited with or on behalf of the Clearing
Agency.
The Trust shall execute and the Property Trustee shall, in
accordance with this Section 7.3, authenticate and make available for delivery
initially one or more Global Securities that (i) shall be registered in the name
of Cede & Co. or other nominee of such Clearing Agency and (ii) shall be
delivered by the Trustee to such Clearing Agency or pursuant to such Clearing
Agency's written instructions or held by the Property Trustee as custodian for
the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Declaration with respect to any
Global Security held on their behalf by the Clearing Agency or by the Property
Trustee as the custodian of the Clearing Agency or under such Global Security,
and the Clearing Agency may be treated by the Trust, the Property Trustee and
any agent of the Trust or the Property Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Trust, the Property Trustee or any agent of the
Trust or the Property Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Clearing Agency or impair, as
between the Clearing Agency and its Participants, the operation of customary
practices of such Clearing Agency governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(c) Definitive QUIPS. Except as provided in Section 7.9,
owners of beneficial interests in a Global Security will not be entitled to
receive physical delivery of certificated QUIPS ("Definitive QUIPS").
SECTION 7.4 Registrar, Paying Agent and Exchange Agent.
The Trust shall maintain in the Borough of Manhattan, The City
of New York, (i) an office or agency where QUIPS may be presented for
registration of transfer ("Registrar") and (ii) an office or agency where QUIPS
may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the QUIPS and of their transfer. The Property Trustee may appoint
the Registrar and the Paying Agent and may appoint one or more co-registrars and
one or more additional paying agents in such other locations as it shall
determine. The term "Registrar" includes any additional registrar and the term
"Paying Agent" includes any additional paying agent. The Property Trustee may
change any Paying Agent or Registrar without prior notice to any Holder. The
Paying Agent shall be permitted to resign as Paying Agent upon 30 days' written
notice to the Property Trustee (if not the Paying Agent) and the Administrators.
The Trust shall notify the Property Trustee of the name and address of any Agent
not a party to this Declaration. In the event that the Property Trustee Shall no
longer be the Paying Agent or the Registrar, the Administrators shall appoint
another
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entity as Registrar or Paying Agent. The Trust or any of its Affiliates may act
as Paying Agent or Registrar. The Trust shall act as Paying Agent and Registrar
for the Common Trust Securities.
The Property Trustee will initially act as Registrar and
Paying Agent for the QUIPS.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the
Property Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Property Trustee all money held by the Paying
Agent for the payment of liquidation amounts or Distributions on the Securities,
and will notify the Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property Trustee may
require a Paying Agent to pay all money held by it to the Property Trustee. The
Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment over
to the Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the money. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder claims that a certificate evidencing the
securities owned by it has been lost, destroyed or wrongfully taken or if such
certificate is mutilated and is surrendered to the Trust, or in the case of a
certificate evidencing QUIPS, to the Property Trustee, and the Property Trustee
shall receive evidence to its satisfaction of the destruction, loss or theft of
such certificate and there shall be delivered to the Property Trustee and the
Administrators such security or indemnity as may be required by them to keep
each of them harmless, then, in the absence of notice that such certificate
shall have been acquired by a bonafide purchaser, an Administrator on behalf of
the Trust shall execute (and in the case of a certificate evidencing QUIPS, the
Property Trustee shall authenticate) and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen certificate, a new certificate of
like denomination. In connection with the issuance of any new certificate under
this Section 7.6, the Registrar or the Administrators may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate certificate issued pursuant to
this Section 7.6 shall constitute conclusive evidence of or ownership interest
in the relevant Securities, as if originally issued, whether or not the lost,
stolen or destroyed certificate shall be found at any time.
SECTION 7.7 Outstanding QUIPS.
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The QUIPS outstanding at any time are all the QUIPS
authenticated by the Property Trustee except for those cancelled by it, those
delivered to it for cancellation, and those described in this Section as not
outstanding. If a QUIPS is replaced paid or purchased, pursuant to Section 7.6
or Section 7.10, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced QUIPS is held by a bona fide
purchaser. If QUIPS are considered paid in accordance with the terms of this
Declaration, they cease to be outstanding and Distributions on them shall cease
to accumulate.
A QUIPS does not cease to be outstanding because one of the
Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
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SECTION 7.8 QUIPS in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, QUIPS owned by
the Trust, the Sponsor or an Affiliate of the Sponsor, as the case may be, shall
be disregarded and deemed not to be outstanding, except that for the purposes of
determining whether the Property Trustee shall be fully protected in relying on
any such direction, waiver or consent, only Securities which a Responsible
Officer of the Property Trustee actually knows are so owned shall be so
disregarded.
SECTION 7.9 Temporary Securities.
(a) Until definitive securities are ready for delivery, the
Trust may prepare and, in the case of the QUIPS, the Property Trustee shall
authenticate temporary securities. Temporary Securities shall be substantially
in the form of definitive securities but may have variations that the Trust
considers appropriate for temporary securities. Without unreasonable delay, the
Trust shall prepare and, in the case of the QUIPS, the Property Trustee shall
authenticate definitive securities in exchange for temporary securities.
(b) A Global Security deposited with the Clearing Agency or
with the Property Trustee as custodian for the Clearing Agency pursuant to
Section 7.3 shall be transferred to the beneficial owners thereof in the form of
Definitive QUIPS only if such transfer complies with Section 9.2 and (i) the
Clearing Agency notifies the Sponsor that it is unwilling or unable to continue
as Clearing Agency for such Global Security or if at any time such Clearing
Agency ceases to be a "clearing agency" registered under the Exchange Act and a
clearing agency is not appointed by the Sponsor within 90 days of such notice,
(ii) a Default or an Event of Default has occurred and is continuing, or (iii)
the Trust at its sole discretion elects to cause the issuance of Definitive
QUIPS.
(c) Any Global Security that is transferable to the beneficial
owners thereof in the form of Definitive QUIPS pursuant to this Section 7.9
shall be surrendered by the Clearing Agency to the Property Trustee to be so
transferred, in whole or from time to time in part, without charge, and the
Property Trustee shall authenticate and make available for delivery, upon such
transfer of each portion of such Global Security, an equal aggregate liquidation
amount of Securities of authorized denominations in the form of Definitive
QUIPS. Any portion of a Global Security transferred pursuant to this Section
shall be registered in such names as the Clearing Agency shall direct.
(d) Subject to the provisions of Section 7.9(c), the Holder of
a Global Security may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants,
to take any action which such Holder is entitled to take under this Declaration
or the Securities.
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(e) In the event of the occurrence of any of the events
specified in Section 7.9(b), the Trust will promptly make available to the
Property Trustee a reasonable supply of Definitive QUIPS in fully registered
form without distribution coupons.
SECTION 7.10 Cancellation.
The Trust at any time may deliver QUIPS to the Property
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Property Trustee any QUIPS surrendered to them for registration of transfer,
redemption, repurchase, exchange or payment. The Property Trustee shall promptly
cancel all QUIPS surrendered for registration of transfer, redemption,
repurchase, exchange, payment, replacement or cancellation and shall dispose of
cancelled QUIPS as the Trust directs, provided that the Property Trustee shall
not be obligated to destroy QUIPS. The Trust may not issue new QUIPS to replace
QUIPS that it has paid or that have been delivered to the Property Trustee for
cancellation or that any holder has exchanged.
SECTION 7.11 CUSIP Numbers.
The Trust in issuing the QUIPS may use "CUSIP" numbers (if
then generally in use), and, if so, the Property Trustee shall use "CUSIP"
numbers in notices of exercise of the Debenture Put Options as a convenience to
Holders of QUIPS; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the QUIPS or
as contained in any such notice and that reliance may be placed only on the
other identification numbers printed on the QUIPS, and any such exercise shall
not be affected by any defect in or omission of such numbers. The Sponsor will
promptly notify the Property Trustee of any change in the "CUSIP" numbers.
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall automatically dissolve:
(i) upon a Bankruptcy Event of the Sponsor;
(ii) upon the filing of a certificate of dissolution or
liquidation or its equivalent with respect to the Sponsor; or the revocation of
the Sponsor's charter and the expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) after satisfaction of liabilities to creditors of
the Trust as required by applicable law, following the distribution of a Like
Amount of the Debentures to the Holders, provided that the Property Trustee has
received written notice from the Sponsor, as holder of
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all of the issued and outstanding Common Trust Securities directing the Property
Trustee, to dissolve the Trust (which direction is optional, and except as
otherwise expressly provided below, within the discretion of the Sponsor);
(iv) upon the entry of a decree of judicial dissolution of
the Trust by a court of competent jurisdiction;
(v) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have been paid
to the Holders in accordance with the terms of the Securities;
(vi) upon the repayment of the Debentures or at such time
as no Debentures are outstanding; or
(vii) the expiration of the term of the Trust provided in
Section 3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and after the completion of the winding up of the
Trust's affairs, the Administrators shall file a certificate of cancellation
with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9, Article X and Section 11.2
shall survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, QUIPS may only be transferred,
in whole or in part, in accordance with the terms and conditions set forth in
this Declaration. To the fullest extent permitted by law, any transfer or
purported transfer of any security not made in accordance with this Declaration
shall be null and void.
(c) The Sponsor may not transfer the Common Trust Securities;
provided, however, that any permitted successor of the Sponsor under the
Indenture may succeed to the Sponsor's ownership of the Common Trust Securities.
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(d) The Registrar shall provide for the registration of
Securities and of the transfer of Securities, which will be effected without
charge but only upon payment (with such indemnity as the Registrar may require)
in respect of any tax or other governmental charges that may be imposed in
relation to it. Upon surrender for registration of transfer of any Securities,
the Registrar shall cause one or more new Securities to be issued in the name of
the designated transferee or transferees. Every Security surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar duly executed by the Holder or
such Holder's attorney duly authorized in writing. Each Security surrendered for
registration of transfer shall be canceled by the Property Trustee. A transferee
of a Security shall be entitled to the rights and subject to the obligations of
a Holder hereunder upon the receipt by such transferee of a Security. By
acceptance of a Security, each transferee shall be deemed to have agreed to be
bound by this Declaration.
SECTION 9.2 Transfer Procedures and Restrictions.
(a) Transfer and Exchange of Definitive QUIPS. When Definitive
QUIPS are presented to the Registrar or co-Registrar:
(x) to register the transfer of such Definitive QUIPS; or
(y) to exchange such Definitive QUIPS which became
mutilated, destroyed, defaced, stolen or lost, for an equal number of Definitive
QUIPS,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive QUIPS surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Trust and the Registrar or
co-registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
(b) Transfer of a Definitive QUIPS for a Beneficial Interest
in a Global Security. A Definitive QUIPS may not be exchanged for a beneficial
interest in a Global Security except upon satisfaction of the requirements set
forth below. Upon receipt by the Property Trustee of a Definitive QUIPS, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Property Trustee, together with written instructions
directing the Property Trustee to make, or to direct the Clearing Agency to
make, an adjustment on its books and records with respect to the appropriate
Global Security to reflect an increase in the number of the QUIPS represented by
such Global Security, then the Property Trustee shall cancel such Definitive
QUIPS and cause, or direct the Clearing Agency to cause, the aggregate number of
QUIPS represented by the appropriate Global Security to be increased
accordingly. If no Global Securities are then outstanding, the Trust shall issue
and the Property Trustee shall authenticate, upon written order of any
Administrator, an appropriate number of QUIPS in global form.
(c) Transfer and Exchange of Global Securities. Subject to
Section 9.2(d), the transfer and exchange of Global Securities or beneficial
interests therein shall be effected
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through the Clearing Agency, in accordance with this Declaration (including
applicable restrictions on transfer set forth herein, if any) and the procedures
of the Clearing Agency therefor.
(d) Transfer of a Beneficial Interest in a Global Security for
a Definitive QUIPS.
(i) If the QUIPS cease to constitute Pledged Securities,
any Person having a beneficial interest in a Global Security may upon request,
but only upon 20 days prior notice to the Property Trustee, and if accompanied
by the information specified below, exchange such beneficial interest for a
Definitive QUIPS representing the same number of QUIPS. Upon receipt by the
Property Trustee from the Clearing Agency or its nominee on behalf of any Person
having a beneficial interest in a Global Security of written instructions or
such other form of instructions as is customary for the Clearing Agency or the
Person designated by the Clearing Agency as having such a beneficial interest in
a QUIPS and a certification from the transferor (in a form substantially similar
to that attached hereto as the "Form of Assignment" in Exhibit A-1), which may
be submitted by facsimile, then the Property Trustee will cause the aggregate
number of QUIPS represented by Global Securities to be reduced on its books and
records and, following such reduction, the Trust will execute and the Property
Trustee will authenticate and make available for delivery to the transferee a
Definitive QUIPS.
(ii) Definitive QUIPS issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 9.2(d) shall be
registered in such names and in such authorized denominations as the Clearing
Agency, pursuant to instructions from its Participants or indirect participants
or otherwise, shall instruct the Property Trustee in writing. The Property
Trustee shall deliver such QUIPS to the Persons in whose names such QUIPS are so
registered in accordance with such instructions of the Clearing Agency.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Declaration (other than
the provisions set forth in subsection (f) of this Section 9.2), a Global
Security may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or another nominee of the Clearing Agency or by
the Clearing Agency or any such nominee to a successor Clearing Agency or a
nominee of such successor Clearing Agency.
(f) Authentication of Definitive QUIPS. If at any time:
(i) there occurs a Default or an Event of Default which is
continuing, or
(ii) the Trust, at the direction of the Sponsor, as Holder
of all of the issued and outstanding QUIPS, notifies the Property
Trustee in writing that it elects to cause the issuance of Definitive
QUIPS under this Declaration,
then the Trust will execute, and the Property Trustee, upon receipt of a written
order of the Trust signed by one Administrator requesting the authentication and
delivery of Definitive
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QUIPS to the Persons designated by the Trust, will authenticate and make
available for delivery Definitive QUIPS, equal in number to the number of QUIPS
represented by the Global Securities, in exchange for such Global Securities.
(g) Cancellation or Adjustment of Global Security. At such
time as all beneficial interests in a Global Security have either been exchanged
for Definitive QUIPS to the extent permitted by this Declaration or redeemed,
repurchased or canceled in accordance with the terms of this Declaration, such
Global Security shall be returned to the Clearing Agency for cancellation or
retained and canceled by the Property Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Definitive QUIPS, QUIPS represented by such Global Security shall be reduced and
an adjustment shall be made on the books and records of the Property Trustee (if
it is then the custodian for such Global Security) with respect to such Global
Security, by the Property Trustee or the Securities custodian, to reflect such
reduction.
(h) Obligations with Respect to Transfers and Exchanges of
QUIPS.
(i) To permit registrations of transfers and exchanges, an
Administrator on behalf of the Trust shall execute and the Property Trustee
shall authenticate Definitive QUIPS and Global Securities at the Registrar's or
co-Registrar's request in accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will be
effected without charge, but only upon payment (with such indemnity as the Trust
or the Sponsor may require) in respect of any tax or other governmental charge
that may be imposed in relation to it.
(iii) The Registrar or co-registrar shall not be required
to register the transfer of or exchange of QUIPS during a period beginning at
the opening of business 15 days before the day of mailing of a notice of
redemption of QUIPS and ending at the close of business on the day of such
mailing.
(iv) Prior to the due presentation for registrations of
transfer of any QUIPS, the Trust, the Property Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the person in whose name a
QUIPS is registered as the absolute owner of such QUIPS for the purpose of
receiving Distributions on such QUIPS and for all other purposes whatsoever, and
none of the Trust, the Property Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(v) All QUIPS issued upon any transfer or exchange
pursuant to the terms of this Declaration shall evidence the same security and
shall be entitled to the same benefits under this Declaration as the QUIPS
surrendered upon such transfer or exchange.
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(i) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Security, a Participant in the
Clearing Agency or other Person with respect to the accuracy of the records of
the Clearing Agency or its nominee or of any Participant thereof, with respect
to any ownership interest in the QUIPS or with respect to the delivery to any
Participant, beneficial owner or other Person (other than the Clearing Agency)
of any notice (including any notice of redemption) or the payment of any amount,
under or with respect to such QUIPS. All notices and communications to be given
to the Holders and all payments to be made to Holders under the QUIPS shall be
given or made only to or upon the order of the registered Holders (which shall
be the Clearing Agency or its nominee in the case of a Global Security). The
rights of beneficial owners in any Global Security shall be exercised only
through the Clearing Agency subject to the applicable rules and procedures of
the Clearing Agency. The Property Trustee may conclusively rely and shall be
fully protected in relying upon information furnished by the Clearing Agency or
any agent thereof with respect to its Participants and any beneficial owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Declaration or under applicable law
with respect to any transfer of any interest in any QUIPS (including any
transfers between or among Clearing Agency Participants or beneficial owners in
any Global Security) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Declaration, and to examine
the same to determine substantial compliance as to form with the express
requirements hereof.
(j) Minimum Transfers. QUIPS may only be transferred in
minimum blocks of $100,000 aggregate liquidation amount. Any transfer of QUIPS
in a block having an aggregate liquidation amount of less than $100,000 shall be
deemed to be voided and of no legal effect whatsoever. Any such transferee shall
be deemed not to be a holder of such QUIPS for any purpose, including, but not
limited to, the receipt of payments on such QUIPS, and such transferee shall be
deemed to have no interest whatsoever in such QUIPS.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Security
shall be registered on the books and records of the Trust as the sole owner of
such Security for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Security on the part of any Person, whether
or not the Trust shall have actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Global Securities shall initially be registered on the books
and records of the Trust in the name of Cede & Co., the nominee of the Clearing
Agency, and no QUIPS
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Beneficial Owner will receive a definitive certificate representing such QUIPS
Beneficial Owner's interests in such Global Securities, except as provided in
Section 9.2. Unless and until definitive, fully registered certificates
representing QUIPS have been issued to the QUIPS Beneficial Owners pursuant to
Section 9.2 and Section 7.9:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Securities and receiving approvals, votes or
consents hereunder) as the Holder of the QUIPS and the sole holder of the Global
Securities and shall have no obligation to the QUIPS Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the QUIPS Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such QUIPS Beneficial Owners and the
Clearing Agency and/or the Clearing Agency Participants and receive and transmit
payments of Distributions on the Global Securities to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Holders of
QUIPS is required under this Declaration, the Trustees shall give all such
notices and communications specified herein to be given to the Holders of Global
Securities to the Clearing Agency, and shall have no notice obligations to the
QUIPS Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the QUIPS, the Administrators may, in
their sole discretion, appoint a successor Clearing Agency with respect to such
QUIPS.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES, ADMINISTRATORS OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
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(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the Securities
which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the QUIPS shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the
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Property Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons and any Indemnified Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act in
a manner that is, or provide terms that are, fair and reasonable to the Trust or
any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4 Indemnification.
(a)(i) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Trust) by reason of the fact
that he is or was a Company Indemnified Person against expenses (including
attorneys' fees and expenses), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
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judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the Company
Indemnified Person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees and expenses) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as to
which such Company Indemnified Person shall have been adjudged to be liable to
the Trust unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of liability)
in defense of any action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a), or in defense of any claim, issue or matter
therein, he shall be indemnified, to the full extent permitted by law, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor
only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made by Holder of the Common Trust
Securities.
(v) To the fullest extent permitted by law, expenses
(including attorneys' fees and expenses) incurred by a Company Indemnified
Person in defending a civil, criminal, administrative or investigative action,
suit or proceeding referred to in paragraphs (i) and (ii) of this Section
10.4(a) shall be paid by the Sponsor in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 10.4(a). Notwithstanding the foregoing, no advance
shall be made by the Sponsor if a determination is reasonably and promptly made
by the Holder of the Common Trust Securities, that, based upon the facts known
to the Holder of the Common Trust Securities at the time such
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determination is made, such Company Indemnified Person acted in bad faith or in
a manner that such person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in instances where
the Holder of the Common Trust Securities reasonably determine that such person
deliberately breached his duty to the Trust or its Common Trust Securities or
QUIPS Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Section
10.4(a) shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the Sponsor or Holders of the
QUIPS or otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. All rights to indemnification
under this Section 10.4(a) shall be deemed to be provided by a contract between
the Sponsor and each Company Indemnified Person who serves in such capacity at
any time while this Section 10.4(a) is in effect. Any repeal or modification of
this Section 10.4(a) shall not affect any rights or obligations then existing.
(vii) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified Person
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Sponsor would
have the power to indemnify him against such liability under the provisions of
this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a Company Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(b) The Sponsor agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
and the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any and all loss,
liability, damage,
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claim or expense including taxes (other than taxes based on the income of such
Fiduciary Indemnified Person) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in this
Section 10.4(b) shall survive the satisfaction and discharge of this Declaration
and the Trust or the earlier resignation or removal of such Fiduciary
Indemnified Person.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) 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 shall have no rights by virtue of this Declaration in and
to such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the
Delaware Trustee, or the Property Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Covered Person, the Delaware Trustee and the Property
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act as depositary, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrators shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States Federal income tax purposes. The books of account
and the
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records of the Trust shall be examined by and reported upon as of the end of
each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Administrators.
(b) The Administrators shall cause to be duly prepared and
delivered to each of the Holders, any annual United States Federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Administrators shall endeavor to deliver all
such information statements within 90 days after the end of each Fiscal Year of
the Trust.
(c) The Administrators shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States Federal
income tax return, on a Form 1041 or such other form required by United States
Federal income tax law, and any other annual income tax returns required to be
filed by the Administrators on behalf of the Trust with any state or local
taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrators; provided, however, that the
Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4 Withholding.
The Property Trustee and the Administrators shall comply with
all withholding requirements under United States Federal, state and local law.
The Property Trustee shall request, and the Holders shall provide to the Trust,
such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrators
shall file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Property Trustee is required to withhold and pay over any amounts to
any authority with respect to Distributions or allocations to any Holder, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder. In the event of any claimed over withholding, Holders
shall be limited to an action against the applicable jurisdiction. If the amount
required to be withheld was not withheld from actual Distributions made, the
Trust may reduce subsequent Distributions by the amount of such withholding.
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Administrators, the Administrators (or
if there are more than two Administrators, a majority of the
Administrators);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment,
the Property Trustee shall have first received an Officers' Certificate
from the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or immunities of
the Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from the Sponsor that
such amendment is permitted by, and conforms to, the terms of
this Declaration (including the terms of the Securities); and
(B) an Opinion of Counsel that such amendment is
permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities);
provided, however, that the Property Trustee shall not be required to
sign any such amendment; and
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(iii) unless the Property Trustee shall have first
received an Opinion of Counsel that such amendment or the exercise of
any power granted to the Property Trustee or Delaware Trustee in
accordance with such amendment will not:
(A) cause the Trust to be classified for purposes
of United States Federal income taxation as an association
taxable as a corporation or as other than a grantor trust; or
(B) cause the Trust to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(c) Except as provided in Section 12.1(d), (e) or (h), no
amendment shall be made, and any such purported amendment shall be void and
ineffective unless the Holders of a Majority in liquidation amount of the QUIPS
(or Units) shall have consented to such amendment.
(d) 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
other payment on the Securities (including payment of the Applicable Put Price
(as defined in the Indenture)) or otherwise adversely affect the amount of any
distribution required to be made in respect of the Securities as of a specified
date or (ii) restrict the right of a Holder of Securities to institute suit for
the enforcement of any such payment on or after such date.
(e) Section 9.1(b) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities.
(f) Article Four shall not be amended without the consent of
the Holders of a Majority in liquidation amount of the Common Trust Securities.
(g) The rights of the holders of the Common Trust Securities
under Article Five to increase or decrease the number of, and appoint and remove
Trustees or Administrators shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Trust Securities.
(h) Notwithstanding Section 12.1(c), this Declaration may be
amended from time to time by the Sponsor and the Property Trustee without the
consent of the Holders of the Securities to:
(i) cure any ambiguity, correct or supplement any
provision in this Declaration that may be inconsistent with any other provision
of this Declaration 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 the Declaration; or
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(ii) to modify, eliminate or add to any provisions of the
Declaration to such extent as shall be necessary to ensure that the Trust will
be classified for United States Federal income tax purposes as a grantor trust
or as other than an association taxable as a corporation at all times that any
Securities are outstanding or to ensure that the Trust will not be required to
register as an Investment Company under the Investment Company Act;
provided, however, that in the case of clauses (i) and (ii), such action shall
not adversely affect in any material respect the interests of the Holders, and
any amendments of this Declaration pursuant to Section 12.1(h) shall become
effective when notice thereof is given to the Holders of the Securities.
SECTION 12.2 Meetings of the Holders; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrators (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities or Units are entitled to act under the terms of this Declaration, the
terms of the Securities or the rules of any stock exchange on which the QUIPS or
Units are listed or admitted for trading. The Administrators shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Administrators one or more notices in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders calling a meeting shall specify in writing the Securities
held by the Holders exercising the right to call a meeting and only those
Securities specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given by the Property
Trustee to all the Holders of Securities (or Units) having a right to vote
thereat at least seven days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders is permitted or
required under this Declaration or the rules of any stock exchange on which the
QUIPS or Units are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders. Any action that may be taken
at a meeting of the Holders of Securities may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in liquidation
amount that would be necessary to authorize or take such action at a meeting at
which all Holders having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the Holders
entitled to vote who have not consented in writing. The Administrators may
specify that any written ballot submitted to the Security Holder for the purpose
of taking any action without a meeting shall be returned to the Trust within the
time specified by the Administrators;
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(ii) each Holder may authorize any Person to act for it by
proxy on all matters in which a Holder is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the
discretion of the Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the
Administrators or by such other Person that the Administrators may designate;
and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the QUIPS or Units are then listed or trading, otherwise
provides, the Administrators, in their sole discretion, shall establish all
other provisions relating to meetings of Holders, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any such
right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) The Property Trustee is a New York banking corporation
with trust powers and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Declaration;
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
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generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) The execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Property Trustee; and
(d) No consent, approval or authorization of, or registration
with or notice to, any New York State or Federal banking authority is required
for the execution, delivery or performance by the Property Trustee of this
Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with trust power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;
(b) The execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been duly
executed and delivered by the Delaware Trustee and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration
with or notice to, any federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee of this Declaration; and
(d) The Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrators at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders):
Life Re Capital Trust II
c/o Life Re Corporation
969 High Ridge Road
Stamford, CT 06905
Attention: W. Weldon Wilson, Administrator
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of to
the Holders):
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, DE 19711
Attention: Corporate Trust Department
(c) if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as the Property
Trustee may give notice of to the Holders):
The Bank of New York
101 Barclay Street
21st Floor West
New York, NY 10286
Attention: Corporate Trust Trustee Administration
(d) if given to the Holder of the Common Trust Securities, at
the mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Trust Securities may give notice to the Trust):
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Life Re Corporation
969 High Ridge Road
Stamford, CT 06905
Attention: Chief Financial Officer
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that for United
States Federal income tax purposes the Trust be classified as a grantor trust
and the Debentures as indebtedness. The provisions of this Declaration shall be
interpreted to further this intention of the parties. The parties hereto agree
and any Holder by the acquisition of a Security shall be deemed to have agreed
to treat the Trust as a grantor trust and the Debentures as indebtedness in all
tax and accounting filings and reports.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the
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application of such provision to persons or circumstances other than those to
which it is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
----------------------------------
Rodney A. Hawes, Jr.,
as Administrator
----------------------------------
Jacques E. Dubois,
as Administrator
----------------------------------
W. Weldon Wilson,
as Administrator
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
------------------------------
Name:
Title:
LIFE RE CORPORATION
as Sponsor
By:
------------------------------
Name:
Title:
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ANNEX I
TERMS OF
___% QUARTERLY INCOME PREFERRED SECURITIES
___% COMMON TRUST SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of March __, 1998 (as amended from time to time,
the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Securities are set out below
(each capitalized term used but not defined herein has the meaning set forth in
the Declaration or, if not defined in such Declaration, as defined in the
Prospectus referred to below in Section 2(c) of this Annex I):
1. Designation and Number.
(a) Quarterly Income Preferred Securities. 100,000 Quarterly
Income Preferred Securities of the Trust with an aggregate liquidation amount
with respect to the assets of the Trust of One Hundred Million Dollars
($100,000,000), and each with a liquidation amount with respect to the assets of
the Trust of $1,000 per security, are hereby designated for the purposes of
identification only as "____% Quarterly Income Preferred Securities" (the
"QUIPS"). The certificates evidencing the QUIPS shall be substantially in the
form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any exchange or quotation system on which the
QUIPS are listed, traded or quoted, if any.
(b) Common Trust Securities. 3,093 Common Trust Securities of
the Trust with an aggregate liquidation amount with respect to the assets of the
Trust of Three Million and Ninety-Three Thousand Dollars ($3,093,000) and a
liquidation amount with respect to the assets of the Trust of $1,000 per
security, are hereby designated for the purposes of identification only as
"____% Common Trust Securities" (the "Common Trust Securities"). The
certificates evidencing the Common Trust Securities shall be substantially in
the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a
rate per annum of ____% (the "Coupon Rate") of the stated liquidation amount of
$1,000 per Security (the "Liquidation Amount"), such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. Except as
set forth below in respect of an Extension Period, Distributions in arrears for
more than one quarterly period will bear additional distributions
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thereon compounded quarterly at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions", as used herein, includes
distributions of any such interest unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Property Trustee and to the extent the Property Trustee has funds on
hand legally available therefor.
(b) Distributions on the Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or,
if no Distributions have been paid, from March __, 1998, and will be payable
quarterly in arrears on ____, ____, ____ and ____ of each year, commencing on
______ ___, 1998 (each, a "Distribution Date"), except as otherwise described
below. Distributions will be computed on the basis of a 360-day year consisting
of twelve 30-day months and for any period less than a full calendar month on
the basis of the actual number of days elapsed in such month. As long as no
Event of Default has occurred and is continuing under the Indenture, the
Debenture Issuer has the right under the Indenture to elect to defer payments of
interest by extending the interest payment period at any time and from time to
time on the Debentures (each an "Extension Period"), during which Extension
Period no interest shall be due and payable on the Debentures, provided that no
Extension Period shall end on a date other than an Interest Payment Date for the
Debentures or extend beyond the Maturity Date of the Debentures. During any such
Extension Period, the Debenture Issuer may not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Debenture Issuer's capital stock (which includes
common and preferred stock), (ii) make any payment of principal of or premium,
if any, or interest on or repay, repurchase or redeem any debt securities of the
Debenture Issuer that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to any guarantee by
the Debenture Issuer of any securities of any subsidiary of the Debenture Issuer
if such guarantee ranks pari passu with or junior in right of payment to the
Debentures (other than, in the case of clauses (i), (ii) and (iii), (a)
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, common stock of the Debenture Issuer, (b)
any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Guarantee, (d) as a result of a reclassification of the
Debenture Issuer's capital stock solely into shares of one or more classes of
series of the Debenture Issuer's capital stock or the exchange or conversion of
one class or series of the Debenture Issuer's capital stock for another class or
series of the Debenture Issuer's capital stock, (e) the purchase of fractional
interests in shares of the Debenture Issuer's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (f) purchases of common stock of the Debenture
Issuer in connection with the satisfaction by the Debenture Issuer of its
obligations (including purchases related to the issuance of such common stock or
rights) under any of the Debenture Issuer's benefit plans for its and its
subsidiaries' directors, officers or employees or any of the Debenture Issuer's
dividend reinvestment plans). As a consequence of such deferral, Distributions
will also be deferred. Despite such deferral, Distributions will continue to
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accumulate with additional Distributions thereon (to the extent permitted by
applicable law but not at a rate greater than the rate at which interest is then
accruing on the Debentures) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further defer payments of interest by further extending
such Extension Period; provided that such Extension Period may not extend beyond
the Maturity Date of the Debentures. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates which shall be one Business Day prior to the relevant
Distribution Date, unless the Securities are issued in certificated form, in
which case the regular record date for such Distributions shall be the first day
of the month in which the relevant Distribution Date falls, which Distribution
Dates correspond to the interest payment dates on the Debentures. The relevant
record dates for the Common Trust Securities shall be the same as the record
dates for the QUIPS. Distributions payable on any Securities that are not
punctually paid on any Distribution Date, as a result of the Debenture Issuer
having failed to make a payment under the Debentures, will cease to be payable
to the Holder on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance with
the Indenture. If any date on which Distributions are payable on the Securities
is not a Business Day, then payment of the Distribution payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the date such payment was originally payable.
(d) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust or the Sponsor
otherwise gives notice of its election to dissolve the Trust pursuant to Section
8.1(a)(iii) of the Declaration, the Trust shall be liquidated by the
Administrators as expeditiously as the Administrators determine to be possible
by distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to the Holders of the Securities a Like Amount (as
defined below) of the Debentures, unless such distribution is determined by the
Property Trustee not to be practicable, in which event such Holders will be
entitled to receive out of the assets of the Trust legally available for
distribution to Holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to the aggregate of the
liquidation
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amount of $1,000 per Security plus accumulated and unpaid Distributions thereon
to the date of payment (such amount being the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having an aggregate Liquidation Amount equal to the
principal amount of Debentures to be paid in accordance with their terms and
(ii) with respect to a distribution of Debentures upon the liquidation of the
Trust, Debentures having a principal amount equal to the aggregate Liquidation
Amount of the Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets on hand
legally available to pay in full the aggregate Liquidation Distribution, then
the amounts payable directly by the Trust on the Securities shall be paid on a
Pro Rata basis, except that if a Event of Default has occurred and is
continuing, the QUIPS shall have priority over the Common Trust Securities.
4. Redemption and Distribution.
(a) The QUIPS will be subject to mandatory redemption on the
Maturity Date of the Debentures out of the proceeds of the repayment of the
Debentures at Maturity. Upon the repayment of the Debentures in whole at
maturity, the proceeds from such repayment shall be simultaneously applied by
the Property Trustee (subject to the Property Trustee having received notice no
later than 45 days prior to such repayment) to redeem a Like Amount of the
Securities at a redemption price equal to the principal of and accrued and
unpaid interest on the Debentures as of the Maturity Date thereof (the "Final
Redemption Price").
(b) On and from the date fixed by the Administrators for any
distribution of Debentures and liquidation of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) the Clearing Agency or its nominee
(or any successor Clearing Agency or its nominee), as the Holder of the
Securities, will receive a registered global certificate or certificates
representing the Debentures to be delivered upon such distribution and (iii) any
certificates representing Securities not held by the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee) will be deemed to
represent beneficial interests in a Like Amount of Debentures and bearing
accrued and unpaid interest in an amount equal to the accumulated and unpaid
Distributions on such Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissue, whereupon the Debenture
Issuer will issue to such Holder, and the Debenture Trustee will authenticate, a
certificate representing such Debentures.
(c) The procedure with respect to redemptions or distributions
of Debentures shall be as follows:
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(i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the date fixed for
redemption or exchange thereof which, in the case of a redemption, will be the
Maturity Date fixed for redemption of the Debentures. For purposes of the
calculation of the date of redemption or exchange and the dates on which notices
are given pursuant to this Section 4(f)(i), a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders. Each Redemption/Distribution
Notice shall be addressed to the Holders of Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) If Securities are to be redeemed and the Trust gives
a Redemption/Distribution Notice, then (A) with respect to QUIPS issued in
book-entry form, by 12:00 noon, New York City time, on the Maturity Date,
provided that the Debenture Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the maturity of the Debentures by 10:00 a.m.,
New York City time, on the Maturity Date, the Property Trustee will deposit
irrevocably with the Clearing Agency or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the Final Redemption Price and
will give the Clearing Agency irrevocable instructions and authority to pay the
Final Redemption Price to the Clearing Agency Participants, and (B) with respect
to QUIPS issued in certificated form and Common Trust Securities, provided that
the Debenture Issuer has paid the Property Trustee a sufficient amount of cash
in connection with the maturity of the Debentures, the Property Trustee will pay
the Final Redemption Price to the Holders by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the Maturity
Date. If a Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to the close of
business on the date of such deposit distributions will cease to accumulate on
the Securities and all rights of Holders will cease, except the right of the
Holders of such Securities to receive the Final Redemption Price, but without
interest on such Final Redemption Price, and such Securities shall cease to be
outstanding.
(iii) Payment of accumulated and unpaid Distributions on
the Maturity Date of the Debentures will be subject to the rights of Holders of
Securities on the close of business on a regular record date in respect of a
Distribution Date occurring on or prior to such Maturity Date.
If the Maturity Date of the Debentures is not a Business Day,
then payment of the Final 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), with the same force and effect as
if made on such date fixed for redemption. If payment of the
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Final Redemption Price is improperly withheld or refused and not paid either by
the Trust or by the Sponsor as guarantor pursuant to the relevant Securities
Guarantee, Distributions on such Securities will continue to accumulate from the
Maturity Date to the actual date of payment, in which case the actual payment
date will be considered the date fixed for redemption for purposes of
calculating the Final Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Property Trustee on behalf of the Trust to (A) in respect of the QUIPS, the
Clearing Agency or its nominee (or any successor Clearing Agency or its nominee)
if the Global Certificates have been issued or, if Definitive QUIPS have been
issued, to the Holder thereof, and (B) in respect of the Common Trust Securities
to the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States Federal securities laws and
banking laws), provided the acquiror is not the Holder of the Common Trust
Securities or the obligor under the Indenture, the Sponsor or any of its
subsidiaries may at any time and from time to time purchase outstanding QUIPS by
tender, in the open market or by private agreement.
5. Voting Rights - QUIPS.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders of the QUIPS will
have no voting rights. The Administrators are required to call a meeting of the
Holders of the QUIPS if directed to do so by the Holders of at least 10% in
liquidation amount of the QUIPS.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
exercising any trust or power conferred on such Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under Section
5.07 of the Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of the Debentures
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 a Majority in liquidation amount
of all outstanding QUIPS (or Units); 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 approval of each Holder of the QUIPS (or Units). The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of the QUIPS (or Units) except by subsequent vote of such Holders. The Property
Trustee shall notify each Holder of Securities of any notice of default with
respect to the Debentures. In addition to obtaining the foregoing approvals of
such Holders prior to taking any of the foregoing actions, the Trustees shall
obtain an Opinion of Counsel experienced in such matters to the effect that the
Trust will not
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be classified as an association taxable as a corporation for United States
Federal income tax purposes on account of such action.
If an Event of Default under the Declaration has occurred and
is continuing and such event is attributable to the failure of the Debenture
Issuer to pay principal of or premium, if any, or interest on the Debentures on
the due date (after giving effect to any Extension Period), then a Holder of
QUIPS (or Units) may directly institute a proceeding for enforcement of payment
to such Holder of the principal of or premium, if any, or interest on a Like
Amount of Debentures (a "Direct Action") on or after the respective due date
specified in the Debentures. In connection with such Direct Action, the rights
of the Common Trust Securities Holder will be subrogated to the rights of such
Holder of QUIPS (or Units) to the extent of any payment made by the Debenture
Issuer to such Holder of QUIPS (or Units) in such Direct Action, provided,
however, that no such subrogation right may be exercised so long as an Event of
Default has occurred and is continuing. Except as provided in the second
preceding sentence, the Holders of QUIPS (or Units) will not be able to exercise
directly any other remedy available to the holders of the Debentures.
Any approval or direction of Holders of QUIPS (or Units) may
be given at a separate meeting of such Holders of QUIPS (or Units) convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Property Trustees will cause a notice of any
meeting at which Holders of QUIPS (or Units) are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of QUIPS (or Units). Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the QUIPS (or Units) will
be required for the Trust to redeem and cancel QUIPS or to distribute the
Debentures in accordance with the Declaration and the terms of the Securities.
Notwithstanding that Holders of QUIPS (or Units) are entitled
to vote or consent under any of the circumstances described above, any of the
QUIPS (or Units) that are owned by the Sponsor or any Affiliate of the Sponsor
shall not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
6. Voting Rights - Common Trust Securities.
(a) Except as provided under Sections 6(b), 6(c) and 7 as
otherwise required by law and the Declaration, the Holders of the Common Trust
Securities will have no voting rights.
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(b) Unless an Event of Default under the Declaration shall
have occurred and be continuing, any Trustee may be removed at any time by the
holder of the Common Trust Securities. If an Event of Default under the
Declaration has occurred and is continuing, the Property Trustee and the
Delaware Trustee may be removed at such time by the Holders of a Majority in
liquidation amount of the outstanding QUIPS. In no event will the Holders of the
QUIPS have the right to vote to appoint, remove or replace the Administrators,
which voting rights are vested exclusively in the Sponsor as the holder of the
Common Trust Securities. No resignation or removal of a Trustee and no
appointment of a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
Declaration.
(c) Subject to Section 2.6 of the Declaration and only after
each Event of Default (if any) with respect to the QUIPS has been cured, waived,
or otherwise eliminated and subject to the requirements of the last sentence of
this paragraph, the Holders of a Majority of the Common Trust Securities, voting
separately as a class, may direct 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 the Declaration,
including (i) directing the time, method, place of conducting any proceeding for
any remedy available to the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the Debentures, (ii) waive
any past default and its consequences that is waivable under the Indenture, or
(iii) exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of the Debentures; provided, however, that, where
a consent or action under the Indenture would require a Super Majority, the
Property Trustee may only give such consent or take such action at the written
direction of the Holders of at least the proportion in liquidation amount of the
Common Trust Securities which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding. Notwithstanding this
Section 6(c), the Property Trustee shall not revoke any action previously
authorized or approved by a vote or consent of the Holders of the QUIPS. Other
than with respect to directing the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee or the Debenture
Trustee as set forth above, the Property Trustee shall not take any action
described in (i), (ii) or (iii) above, unless the Property Trustee has obtained
an Opinion of Counsel to the effect that for the purposes of United States
Federal income tax the Trust will not be classified as an association taxable as
a corporation or as other than a grantor trust on account of such action.
If an Event of Default under the Declaration has occurred and
is continuing and such event is attributable to the failure of the Debenture
Issuer to pay principal of or premium, if any, or interest on the Debentures on
the due date (after giving effect to any Extension Period), then a Holder of
Common Trust Securities may institute a Direct Action for enforcement of payment
to such Holder of the principal of or premium, if any, or interest on a Like
Amount of Debentures on or after the respective due date specified in the
Debentures. In connection with Direct Action, the rights of the Common Trust
Securities Holder will be subordinated to the rights of such Holder of QUIPS to
the extent of any payment made by the
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Debenture Issuer to such Holder of Common Trust Securities in such Direct
Action. Except as provided in the second preceding sentence, the Holders of
Common Trust Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
Any approval or direction of Holders of Common Trust
Securities may be given at a separate meeting of Holders of Common Trust
Securities convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The Administrators will
cause a notice of any meeting at which Holders of Common Trust Securities are
entitled to vote, or of any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Common Trust
Securities. Each such notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Trust
Securities will be required for the Trust to redeem and cancel Common Trust
Securities or to distribute the Debentures in accordance with the Declaration
and the terms of the Securities.
7. Amendments to Declaration.
(a) The provisions set forth under Section 12.1 of the
Declaration and this Section 7 shall govern any amendments to the Declaration.
(b) Notwithstanding any provisions of the Declaration and the
provisions of Section 3.16(b) of the Trust Indenture Act, the right of any
Holder of QUIPS to receive payment of distributions and other payments upon
redemption, repurchase or otherwise, on or after their respective due dates, or
to institute a suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder. For the protection and enforcement of the foregoing provision, each and
every Holder of QUIPS shall be entitled to such relief as can be given either at
law or equity.
8. Right to Exercise Debenture Put Options.
Each holder of QUIPS (or, for so long as QUIPS underlie Units,
each holder of Units) will have the right to require the Trust to distribute
Debentures having an aggregate principal amount equal to the aggregate
Liquidation Amount of such QUIPS to the Put Agent (as defined in the Master Unit
Agreement), on the Stock Purchase Date (as defined in the Master Unit Agreement)
or on the date which is three months after the Stock Purchase Date (the "Final
Put Date" and, together with the Stock Purchase Date, the "Put Dates"), in
exchange for such QUIPS, in connection with the concurrent exercise by the Put
Agent on behalf of each such holder of the Debenture Put Option related thereto.
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A holder of QUIPS (or, for so long as QUIPS underlie Units,
each holder of Units) may exercise the right referred to above by presenting and
surrendering the certificate evidencing such QUIPS (or Units), at the offices of
the Property Trustee, with the form of "Notice to Require Exercise of Junior
Subordinated Debenture Put Option" on the reverse side of the certificate
completed and executed as indicated, by 10:00 a.m., New York City time, on the
applicable Put Date. If such right is properly exercised, the applicable
Debentures will be distributed to an agent for the holder appointed by Debenture
Issuer for such purpose (the "Put Agent", who shall, if the right is exercised
on the Stock Purchase Date, be the Collateral Agent), and the Put agent will
then exercise the Debenture Put Option related thereto on behalf of the holder.
9. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the QUIPS
pro rata according to the aggregate liquidation amount of QUIPS held by the
relevant Holder relative to the aggregate liquidation amount of all QUIPS
outstanding, and only after satisfaction of all amounts owed to the Holders of
the QUIPS, to each Holder of Common Trust Securities pro rata according to the
aggregate liquidation amount of Common Trust Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Common Trust
Securities outstanding.
10. Ranking; Subordination of Common Trust Securities.
(a) The QUIPS rank pari passu with the Common Trust Securities
and payment of Distributions on, and the Final Redemption Price of, the QUIPS
and the Common Trust Securities, as applicable, shall be made pro rata based on
the liquidation amount of the QUIPS and Common Trust Securities; provided,
however, that if on any Distribution Date or Maturity Date an Event of Default
under the Declaration (solely as the result of an event described in clauses
(a), (b) or (c) thereto) shall have occurred and be continuing, no payment of
any Distribution, or Final Redemption Price of, any of the Common Trust
Securities, and no other payment on account of the redemption, liquidation or
other acquisition of the Common Trust Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions on all of the
outstanding QUIPS for all distribution periods terminating on or prior thereto
or, in the case of the Maturity Date, the full amount of the Final Redemption
Price therefor, shall have been made or provided for, and all funds available to
the Property Trustee shall first be applied to the payment in full in cash of
all Distributions on, or Final Redemption Price of, the QUIPS then due and
payable.
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In the case of any Event of Default, the holder of the Common
Trust Securities will be deemed to have waived any right to act with respect to
such Event of Default until the effect of such Event of Default shall have been
cured, waived or otherwise eliminated. Until any such Event of Default has been
so cured, waived or otherwise eliminated, the Property Trustee shall act solely
on behalf of the Holders of the QUIPS, and only the Holders of the QUIPS will
have the right to direct the Property Trustee to act on their behalf.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of QUIPS and Common Trust Securities, by the
acceptance thereof, agrees to the provisions of the QUIPS Guarantee and the
Common Trust Securities Guarantee, respectively, including the subordination
provisions therein and to the provisions of the Indenture and the Declaration.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive or
similar rights to subscribe for any additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Indenture, the QUIPS Guarantee or the Common Trust Securities Guarantee (as may
be appropriate) and the Indenture (including any supplemental indenture) to a
Holder without charge on written request to the Sponsor at its principal place
of business.
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EXHIBIT A-1
FORM OF QUARTERLY INCOME PREFERRED SECURITIES
FORM OF FACE OF SECURITY
IF THIS QUARTERLY INCOME PREFERRED SECURITY ("QUIPS") IS A GLOBAL SECURITY,
INSERT: THIS QUARTERLY INCOME PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE
CLEARING AGENCY. THIS QUIPS IS EXCHANGEABLE FOR QUIPS REGISTERED IN THE NAME OF
A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS QUIPS (OTHER
THAN A TRANSFER OF THIS QUIPS AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF
THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING
AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS QUIPS IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), A NEW
YORK CORPORATION, TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY QUIPS ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN 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 OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
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Certificate Number Number of Quarterly Income Preferred Securities
CUSIP NO. _______________
Certificate Evidencing Quarterly Income Preferred Securities
of
Life Re Capital Trust II
____% Quarterly Income Preferred Securities
(liquidation amount $1,000 per Quarterly Income Preferred Security)
Life Re Capital Trust II, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of __________ securities of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
designated the ____% Quarterly Income Preferred Securities (liquidation amount
$1,000 per Quarterly Income Preferred Security) (the "QUIPS"). Subject to the
terms of the Declaration (as defined below), the QUIPS are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the QUIPS represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of March ___, 1998, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the QUIPS as
set forth in Annex I to the Declaration. Capitalized terms used but not defined
herein shall have the meaning given them in the Declaration. The Sponsor will
provide a copy of the Declaration, the QUIPS Guarantee and the Indenture to a
Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the QUIPS Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States
Federal income tax purposes, the Trust as a grantor trust, the Debentures as
indebtedness and the QUIPS as evidence of indirect beneficial ownership in the
Debentures.
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IN WITNESS WHEREOF, the Trust has executed this certificate
this ____ day of _______, 1998.
LIFE RE CAPITAL TRUST II
By:
------------------------
Name:
Title: Administrator
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PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Quarterly Income Preferred Securities
referred to in the within-mentioned Declaration.
Dated: _______________
THE BANK OF NEW YORK,
as Property Trustee
By:
----------------------------
Authorized Signatory
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FORM OF REVERSE OF SECURITY
Distributions payable on each QUIPS will be fixed at a rate per annum
of ____% (the "Coupon Rate") of the liquidation amount of $1,000 per QUIPS, such
rate being the rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions in arrears for more than one quarterly period
will bear interest thereon compounded quarterly at the Coupon Rate (to the
extent permitted by applicable law). The term "Distributions", as used herein,
includes such cash distributions and any such interest unless otherwise stated.
A Distribution is payable only to the extent that payments are made in respect
of the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds on hand legally available therefor.
Distributions on the QUIPS will be cumulative, will accumulate
from the most recent date to which Distributions have been paid or, if no
Distributions have been paid, from March __, 1998 and will be payable quarterly
in arrears, on __________, ___, ______, and ___ of each year, commencing on
_____, 1998, except as otherwise described below. Distributions will be computed
on the basis of a 360-day year consisting of twelve 30-day months and, for any
period less than a full calendar month, the number of days elapsed in such
month. As long as no Event of Default has occurred and is continuing under the
Indenture, the Debenture Issuer has the right under the Indenture to elect to
defer payments of interest by extending the interest payment period at any time
and from time to time on the Debentures (each an "Extension Period"), provided
that no Extension Period shall end on a date other than an Interest Payment Date
for the Debentures or extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, quarterly Distributions will continue to accumulate with interest
thereon (to the extent permitted by applicable law, but not at a rate exceeding
the rate of interest then accruing on the Debentures) at the Coupon Rate
compounded quarterly during any such Extension Period. Prior to the termination
of any such Extension Period, the Debenture Issuer may further defer payments of
interest by further extending such Extension Period; provided that such
Extension Period may not extend beyond the Maturity Date of the Debentures.
Payments of accumulated Distributions will be payable to Holders as they appear
on the books and records of the Trust on the first record date after the end of
the Extension Period. Upon the termination of any Extension Period and the
payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
Subject to the conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time dissolve the Trust and, after satisfaction of liabilities to creditors of
the Trust as required by applicable law, cause the Debentures to be distributed
to the holders of the Securities in liquidation of the Trust.
The QUIPS will be subject to mandatory redemption on the
Maturity Date of the Debentures as provided in the Declaration.
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83
The QUIPS and the rights of the Holders shall be governed by
and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
---------------------
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84
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this 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 Security on the books of the Trust. The agent may
substitute another to act for him or her.
Date:
----------------------
Signature:
----------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee (1):
---------------------------
- -------------------------
(1) Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities and Exchange Act of 1934, as amended.
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85
NOTICE TO REQUIRE EXERCISE OF JUNIOR SUBORDINATED
DEBENTURE PUT OPTION
The undersigned holder of this Security hereby irrevocably exercises
the right to require the Trust to distribute to the Put Agent Debentures having
an aggregate principal amount equal to the Liquidation Amount of this Security,
or the portion below designated, in exchange for this Security, or the portion
below designated, on the date hereof in accordance with the terms of the Amended
and Restated Declaration of Trust, dated as of March __, 1998 in connection with
the concurrent exercise by the Put Agent on behalf of the holder of this
Security of the Debenture Put Option related hereto. Pursuant to the
aforementioned exercise of the right to require the Trust to distribute to the
Put Agent Debentures in exchange for this Security, the undersigned hereby
directs the Property Trustee to take any actions necessary to effect the
exchange of this Security, or the portion below designated, for a Like Amount of
Debentures.
Date:
---------------------
Principal Amount of this Security to be exchanged ($1000 or integral multiples
thereof):
- ----------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Please Print or Type Name and Address,
Including Zip Code, and Social Security
or Other Identifying Number
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
- -------------------------------------------------------------
Signature Guarantee:*
---------------------------------------------------------
- --------
* Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
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86
EXHIBIT A-2
FORM OF COMMON TRUST SECURITY CERTIFICATE
THIS COMMON TRUST SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN
EFFECTIVE REGISTRATION STATEMENT.
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED.
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87
Certificate Number: Number of Common Trust Securities:
Certificate Evidencing Common Trust Securities
of
Life Re Capital Trust II
____% Common Trust Securities
(liquidation amount $1,000 per Common Trust Security)
Life Re Capital Trust II, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that Life Re Corporation
(the "Holder") is the registered owner of ____________ common trust securities
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the ____% Common Trust Securities (liquidation amount $1,000
per Common Trust Security) (the "Common Trust Securities"). Subject to the
limitation in Section 9.1(b) of the Declaration, the Common Trust Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Trust Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of March ___, 1998 as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Trust
Securities as set forth in Annex I to the Declaration. Capitalized terms used
but not defined herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Common Trust Securities
Guarantee and the Indenture (including any supplemental indenture) to a Holder
without charge upon written request to the Sponsor at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the Common Trust Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States
Federal income tax purposes, the Debentures as indebtedness and the Common Trust
Securities as evidence of indirect beneficial ownership in the Debentures.
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88
IN WITNESS WHEREOF, the Trust has executed this certificate
this ___ day of ______, 1998.
LIFE RE CAPITAL TRUST II
---------------------------
Name:
Title: Administrator
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89
FORM OF REVERSE OF SECURITY
Distributions payable on each Common Trust Security will be fixed at a
rate per annum of ____% (the "Coupon Rate") of the liquidation amount of $1,000
per Common Trust Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for more
than one quarterly period will bear interest thereon compounded quarterly at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions", as used herein, includes such cash distributions and any such
interest unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Property Trustee
and to the extent the Property Trustee has funds available therefor.
Distributions on the Common Trust Securities will be cumulative, will
accrue from the most recent date to which Distributions have been paid or, if no
Distributions have been paid, from March ___, 1998 and will be payable quarterly
in arrears, on _____, _____, _____ and _____ of each year, commencing on
________, 1998, except as otherwise described below. Distributions will be
computed on the basis of a 360-day year consisting of twelve 30-day months and,
for any period less than a full calendar month, the number of days elapsed in
such month. As long as no Event of Default has occurred and is continuing under
the Indenture, the Debenture Issuer has the right under the Indenture to elect
to defer payments of interest by extending the interest payment period at any
time and from time to time on the Debentures (each an "Extension Period"),
provided that no Extension Period shall end on a date other than an Interest
Payment Date for Debentures or extend beyond the Maturity Date of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, Distributions will continue to accumulate with
interest thereon (to the extent permitted by applicable law, but not at a rate
exceeding the rate of interest then accruing on the Debentures) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further defer
payments of interest by further extending such Extension Period; provided that
such Extension Period may not extend beyond the Maturity Date of the Debentures.
Payments of accrued Distributions will be payable to Holders as they appear on
the books and records of the Trust on the first record date after the end of the
Extension Period. Upon the termination of any Extension Period and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements.
Subject to the conditions set forth in the Declaration and the
Indenture, the Property Trustee may, at the direction of the Sponsor, at any
time liquidate the Trust and, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, cause the Debentures to be distributed
to the holders of the Securities in liquidation of the Trust
The Common Trust Securities will be subject to mandatory
redemption on the Maturity Date of the Debentures, as provided in the
Declaration.
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90
The Common Trust Securities and the rights of the holders
thereof hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
---------------------
A2-5