EXHIBIT 4.15
AMENDED AND RESTATED DECLARATION OF TRUST
AMONG
DELPHI CORPORATION
as Sponsor,
BANK ONE TRUST COMPANY, N.A.
as Property Trustee,
BANK ONE DELAWARE, INC.
as Delaware Trustee,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of [ ]
DELPHI TRUST [I] [II] [III] [IV]
TABLE OF CONTENTS
Page(s)
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ARTICLE I DEFINED TERMS ............................................................................................2
Section 1.01 Definitions..................................................................................2
ARTICLE II ESTABLISHMENT OF THE TRUST..............................................................................10
Section 2.01 Name .......................................................................................10
Section 2.02 Office of the Delaware Trustee; Principal Place of Business.................................10
Section 2.03 Organizational Expenses.....................................................................11
Section 2.04 Issuance of the Preferred Securities........................................................11
Section 2.05 Subscription and Purchase of Notes; Issuance of the Common Securities.......................11
Section 2.06 Declaration of Trust........................................................................12
Section 2.07 Authorization to Enter into Certain Transactions............................................12
Section 2.08 Assets of the Trust.........................................................................16
Section 2.09 Title to Trust Property.....................................................................16
Section 2.10 Responsibilities of the Sponsor.............................................................17
Section 2.11 Certain Covenants of the Sponsor............................................................17
Section 2.12 Guarantee of Payment of Trust Obligations...................................................18
Section 2.13 Execution of Documents......................................................................18
ARTICLE III PAYMENT ACCOUNT .......................................................................................18
Section 3.01 Payment Account.............................................................................18
ARTICLE IV DISTRIBUTIONS; REDEMPTION; EXCHANGE.....................................................................19
Section 4.01 Distributions...............................................................................19
Section 4.02 Optional Redemption, Mandatory Redemption and Special Event Redemption......................20
Section 4.03 [Reserved]..................................................................................22
Section 4.04 Subordination of Common Securities..........................................................22
Section 4.05 Payment Procedures..........................................................................22
Section 4.06 Tax Returns and Reports.....................................................................22
Section 4.07 Payment of Taxes, Duties, Etc. of the Trust.................................................23
Section 4.08 Payments under Indenture....................................................................23
ARTICLE V TRUST SECURITIES CERTIFICATES............................................................................23
Section 5.01 Initial Ownership...........................................................................23
Section 5.02 The Trust Securities Certificates...........................................................23
Section 5.03 Delivery of Trust Securities Certificates...................................................24
Section 5.04 Registration of Transfer and Exchange of Preferred Securities; Restrictions on
Transfer..........................................................................24
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..........................26
Section 5.06 Persons Deemed Securityholders..............................................................26
Section 5.07 Access to List of Securityholders' Names and Addresses......................................27
Section 5.08 Maintenance of Office or Agency.............................................................27
Section 5.09 Appointment of Paying Agent.................................................................27
Section 5.10 Ownership of Common Securities by Sponsor...................................................28
Section 5.11 Global Certificates; Non-Global Certificates; Common Securities Certificate.................28
Section 5.12 Notices to Clearing Agency..................................................................30
Section 5.13 Definitive Preferred Securities Certificates................................................30
Section 5.14 Rights of Securityholders...................................................................30
ARTICLE VI ACT OF SECURITYHOLDERS; MEETINGS; VOTING................................................................31
Section 6.01 Limitations on Voting Rights................................................................31
Section 6.02 Notice of Meetings..........................................................................32
Section 6.03 Meetings of Preferred Securityholders.......................................................32
Section 6.04 Voting Rights...............................................................................32
Section 6.05 Proxies, Etc................................................................................33
Section 6.06 Securityholder Action by Written Consent....................................................33
Section 6.07 Record Date for Voting and Other Purposes...................................................33
Section 6.08 Acts of Securityholders.....................................................................33
Section 6.09 Inspection of Records.......................................................................35
ARTICLE VII REPRESENTATIONS AND WARRANTIES.........................................................................35
Section 7.01 Representations and Warranties of the Property Trustee and the Delaware Trustee.............35
Section 7.02 Representations and Warranties of Sponsor...................................................36
ARTICLE VIII THE TRUSTEES .........................................................................................37
Section 8.01 Certain Duties and Responsibilities.........................................................37
Section 8.02 Notice of Defaults..........................................................................38
Section 8.03 Certain Rights of Property Trustee..........................................................40
Section 8.04 Not Responsible for Recitals or Issuance of Securities......................................42
Section 8.05 May Hold Securities.........................................................................42
Section 8.06 Compensation; Indemnity; Fees...............................................................43
Section 8.07 Property Trustee Required; Eligibility of Trustees..........................................43
Section 8.08 Conflicting Interests; Guarantee Described..................................................44
Section 8.09 Resignation and Removal; Appointment of Successor...........................................44
Section 8.10 Acceptance of Appointment by Successor......................................................46
Section 8.11 Merger, Conversion, Consolidation or Succession to Business.................................47
Section 8.12 Preferential Collection of Claims Against Sponsor or Trust..................................47
Section 8.13 Reports by Property Trustee.................................................................47
Section 8.14 Reports to the Property Trustee.............................................................48
Section 8.15 Evidence of Compliance with Conditions Precedent............................................48
Section 8.16 Number of Trustees..........................................................................48
Section 8.17 Delegation of Power.........................................................................48
Section 8.18 Appointment of Administrative Trustees......................................................49
Section 8.19 Administrative Trustee Meetings.............................................................49
Section 8.20 Outside Businesses..........................................................................50
ARTICLE IX TERMINATION, LIQUIDATION AND MERGER.....................................................................50
Section 9.01 Dissolution upon Expiration Date............................................................50
Section 9.02 Early Termination...........................................................................50
Section 9.03 Termination.................................................................................51
Section 9.04 Liquidation.................................................................................51
Section 9.05 Mergers, Consolidations, Amalgamations or Replacements of the Trust.........................53
ARTICLE X MISCELLANEOUS PROVISIONS.................................................................................54
Section 10.01 Limitation of Rights of Securityholders.....................................................54
Section 10.02 Amendment...................................................................................54
Section 10.03 Separability................................................................................55
Section 10.04 Governing Law...............................................................................55
Section 10.05 Payments Due on Non-Business Day............................................................56
Section 10.06 Successors..................................................................................56
Section 10.07 Headings....................................................................................56
Section 10.08 Reports, Notices and Demands................................................................56
Section 10.09 Trust Indenture Act; Conflict with Trust Indenture Act......................................57
Section 10.10 Acceptance of Terms of Declaration, Guarantee and Indenture.................................57
Section 10.11 Counterparts................................................................................58
EXHIBITS
Exhibit A -- Common Securities Certificate
Exhibit B -- Preferred Securities Certificate
DELPHI TRUST [I] [II] [III] [IV]*
Certain Sections of this Declaration
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE ACT SECTION DECLARATION SECTION
Section 310 (a)(1) 8.7
(a)(2) 8.7
(a)(4) 2.7(a)(ii)
(b) 8.8
Section 311 (a) 8.12
(b) 8.12
Section 312 (a) 5.7
(b) 5.7
(c) 5.7
Section 313 (a) 8.13(a)
(c) 10.8
(d) 8.13(c)
(a)(4) 8.13(b)
(b) 8.13(b)
Section 314 (a) 8.14
(b) Not Applicable
(c)(1) 8.15
(c)(2) 8.15
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.1, 8.15
Section 315 (a) 8.1(a), 8.3(a)
(b) 8.2, 10.8
(c) 8.1(a)
(d) 8.1, 8.3
(e) Not Applicable
Section 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) 6.7
Section 317 (a)(1) Not Applicable
(b) 5.9
Section 318 (a) 10.10
*Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of the Declaration.
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of [ ]
among (i) Delphi Corporation, a Delaware corporation (including any successors
or assigns, the "Sponsor"), (ii) Bank One Trust Company, N.A., a national
banking association, as property trustee (in such capacity, the "Property
Trustee" and, in its personal capacity and not in its capacity as Property
Trustee, the "Bank"), (iii) Bank One Delaware, Inc., a Delaware corporation, as
Delaware trustee (in such capacity, the "Delaware Trustee") and (iv) [ ], an
individual, and [ ], an individual, each of whose address is c/o Delphi
Corporation, 5725 Delphi Drive, Troy, Michigan 48098, (each, an "Administrative
Trustee" and, collectively, the "Administrative Trustees" and, collectively with
the Property Trustee and Delaware Trustee, the "Trustees"). The Sponsor and the
Trustees hereby agree as follows:
W I T N E S S E T H:
WHEREAS, the Sponsor, the Delaware Trustee and [ ] and [ ], as
administrative trustees, have heretofore duly declared and established a
statutory trust pursuant to the Delaware Statutory Trust Act by the entering
into a Declaration of Trust, dated as of [ ] (the "Original Declaration"), and
by the execution and filing by the Delaware Trustee and [ ] and [ ], as
administrative trustees, with the Secretary of State of the State of Delaware of
a certificate of trust, filed on [ ], for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust (as defined herein) and investing the proceeds thereof in
the Notes (as defined herein);
[WHEREAS, prior to the date hereof, by action of the Sponsor
and as mutually agreed upon by the affected parties, [ ] and [ ] were appointed
as administrative trustees of the Trust in substitution of [ ] and [ ];]
WHEREAS, as of the date hereof, no interests in the Trust have
been issued; and
WHEREAS, the Sponsor and the Trustees desire to amend and
restate the Original Declaration in its entirety as set forth herein to provide
for, among other things, (i) the issuance and sale of the Common Securities (as
defined herein) by the Trust to the Sponsor, (ii) the issuance and sale of the
Preferred Securities (as defined herein) by the Trust pursuant to the
Underwriting Agreement (as defined herein) and (iii) the acquisition by the
Trust from the Sponsor of all of the right, title and interest in the Notes;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other party and for the benefit of the Holders (as defined herein) of the
Preferred Securities, hereby amends and restates the Original Declaration in its
entirety and agrees as follows:
ARTICLE I
DEFINED TERMS
Section 1.01 Definitions
For all purposes of this Declaration, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the
plural as well as the singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(c) unless the context otherwise requires, any reference
to an "Article", "Section" or an "Exhibit" refers to
an Article, Section or an Exhibit, as the case may
be, of this Declaration; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this
Declaration as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
["Additional Amount" means, with respect to Trust Securities
of a given Liquidation Amount and a given period, the amount of Compounded
Interest (as defined in the Notes) paid by the Sponsor on a Like Amount of Notes
for such period.]
["Additional Sums" means, with respect to the Trust
Securities, the amount of Additional Sums (as defined in the Notes) paid by the
Sponsor on the Notes.]
"Administrative Trustee" means each of [ ] and [ ], each
solely in his capacity as Administrative Trustee of the Trust continued
hereunder and not in her individual capacity, or such Administrative Trustee's
successor in interest in such capacity, or any successor in interest in such
capacity, or any successor administrative trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person, provided, however that an Affiliate
of the Sponsor shall not be deemed to include the Trust. For the purposes of
this definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
-2-
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of the Clearing Agency for such security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Bank" has the meaning specified in the preamble to this
Declaration.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person as
bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such
Person under any applicable federal or state
bankruptcy, insolvency, reorganization or other
similar law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part
of its property or ordering the winding-up or
liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated as bankrupt or insolvent, or the consent
by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization
or relief under any applicable federal or state
bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of
any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator
(or similar official) of such Person or of any
substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay
its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the
taking of corporate action by such Person in
furtherance of any such action.
"Board of Directors" means either the board of directors of
the Sponsor or any committee of that board duly authorized to act hereunder.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not (1) a day on which banking institutions in the City of
New York are authorized or obligated by law or executive order to remain closed
or (2) a day on which the Corporate Trust Office of the Property Trustee or the
corporate trust office of the Note Trustee is closed for business.
"Certificate Depository Agreement" means the Letter of
Representations by the Trust and accepted by The Depository Trust Company, as
the initial Clearing Agency, dated as
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of the Closing Date, relating to the Preferred Securities Certificates, as the
same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended, that has been designated to act as depositary for the
Preferred Securities pursuant to the Certificate Depository Agreement. The
Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the date on which the Preferred
Securities are issued and delivered under the Underwriting Agreement.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit A.
"Common Securities Purchase Agreement" means the Common
Securities Purchase Agreement, dated as of [ ], between the Trust and the
Sponsor.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount with respect to the assets
of the Trust of $[ ] and having the rights provided therefor in this
Declaration, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Corporate Trust Office" means the corporate trust office of
the Property Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
[1111 Polaris Parkway, Mail Suite OH1-0181, Columbus, Ohio 43240, Attention:
Global Corporate Trust Service].
"Covered Person" means (a) any officer, director, trustee,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Trust Securities.
"Declaration" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including all exhibits hereto, including, for
all purposes of this Declaration any such modification, amendment or supplement,
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Declaration and any such modification, amendment or supplement,
respectively.
-4-
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates that are
not Global Certificates issued in certificated, fully registered form as
provided in Section 5.11(b) and (b) Preferred Securities Certificates that are
not Global Certificates issued in certificated, fully registered form as
provided in Section 5.13.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. Sections 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Declaration solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware trustee appointed as herein provided.
"Direct Action" has the meaning specified in Section 6.08(e).
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means the occurrence of a Note Event of
Default, whatever the reason for such Note Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body.
"Expiration Date" has the meaning specified in Section 9.01.
"Global Certificate" means a Preferred Security Certificate
that is registered in the Security Register in the name of a Clearing Agency or
a nominee thereof.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Sponsor and Bank One Trust Company, N.A., a national banking
association, as guarantee trustee, contemporaneously with the execution and
delivery of this Declaration, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Securities
Certificate representing a Trust Security is registered, such Person being a
beneficial owner within the meaning of the Delaware Statutory Trust Act.
"Indenture" means the Indenture, dated as of [ ] between the
Sponsor and the Note Trustee, as amended or supplemented from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
-5-
"Like Amount" means (a) with respect to a redemption of any
Trust Securities, Trust Securities having an aggregate Liquidation Amount equal
to the principal amount of Notes to be contemporaneously redeemed in accordance
with the Indenture, the proceeds of which will be used to pay the applicable
Redemption Price of such Trust Securities, (b) with respect to a distribution of
Notes to Holders of Trust Securities in connection with a dissolution or
liquidation of the Trust, Notes having a principal amount equal to the aggregate
Liquidation Amount of the Trust Securities of the Holder to whom such Notes are
distributed, and (c) with respect to any distribution of Additional Amounts to
Holders of Trust Securities, Notes having a principal amount equal to the
aggregate Liquidation Amount of the Trust Securities in respect of which such
distribution is made.
"Liquidation Amount" means an amount with respect to the
assets of the Trust equal to $[ ] per Trust Security.
"Liquidation Date" means each date on which Notes or cash are
to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in
Section 9.04(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Note Event of Default" means an "Event of Default" as defined
in the Indenture.
"Note Purchase Agreement" means the Note Purchase Agreement,
dated as of [ ], between the Trust and the Sponsor.
"Note Redemption Date" means, with respect to any Notes to be
redeemed under the Indenture, the date fixed for redemption thereof under the
Indenture.
"Note Trustee" means the Person identified as the "Trustee" in
the Indenture, solely in its capacity as Trustee pursuant to the Indenture and
not in its individual capacity, or its successor in interest in such capacity,
or successor Trustee appointed as provided in the Indenture.
"Notes" means up to $[ ] aggregate principal amount of the
Sponsor's [ ]% junior subordinated Notes due [ ] issued pursuant to the
Indenture.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person or, if such Person
is an individual, signed by such Person. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and
the definitions relating thereto;
-6-
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each
officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been
complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Sponsor, and who may
be an employee of any thereof and who shall be reasonably acceptable to the
Property Trustee. Any Opinion of Counsel delivered with respect to compliance
with a condition or covenant provided for in this Declaration shall include:
(a) a statement that each individual signing the Opinion
of Counsel has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each
individual in rendering the Opinion of Counsel;
(c) a statement that each individual has made such
examination or investigation as is necessary to
enable such individual to express an informed opinion
as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
"Optional Redemption Price" means, except as set forth below,
with respect to the Preferred Securities, the following percentages of the
Liquidation Amounts thereof, and accumulated and unpaid Distributions (including
any Additional Amounts (to the extent not otherwise included)), if any, to the
date fixed for redemption if redeemed during the twelve-month period commencing
[ ], in each of the following years indicated:
Year Redemption Price
[2011] [ ]%
[2012] [ ]%
[2013] [ ]%
[2014] [ ]%
[2015] [ ]%
[2016 and thereafter] 100.00%
-7-
In the event of a redemption of Trust Securities upon the occurrence of a
Special Event or upon the occurrence of a mandatory redemption (whether at
maturity or upon acceleration of the Notes), Trust Securities shall be redeemed
at the Redemption Price.
"Original Declaration" has the meaning specified in the
recitals to this Declaration.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities theretofore
executed and delivered under this Declaration, except:
(a) Trust Securities theretofore canceled by the Security
Registrar or delivered to the Security Registrar for
cancellation;
(b) Trust Securities for whose payment or redemption
money in the necessary amount has been theretofore
deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be
redeemed, notice of such redemption has been duly
given pursuant to this Declaration; and
(c) Trust Securities which have been paid or in exchange
for or in lieu of which other Trust Securities have
been executed and delivered pursuant to Section 5.05;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Trust
Securities owned by the Sponsor, any Administrative Trustee or any Affiliate of
the Sponsor or any Administrative Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Trust Securities that an officer of such Trustee
involved in the administration of this Declaration actually knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time when
all of the Outstanding Trust Securities are owned by the Sponsor, one or more of
the Administrative Trustees and/or any such Affiliate. Trust Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Security Registrar the pledgee's
right so to act with respect to such Trust Securities and that the pledgee is
not the Sponsor, any Administrative Trustee or any Affiliate of the Sponsor or
any Administrative Trustee.
"Owner" means each Person who is the beneficial owner of
Preferred Securities as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09.
-8-
"Payment Account" means a segregated non-interest bearing
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Notes will be held and from which the Property Trustee shall make
payments to the Securityholders in accordance with Section 4.01. The Payment
Account shall be an account that is maintained with a banking institution (which
may be the Property Trustee) the rating on whose long-term unsecured
indebtedness is at least equal to the rating assigned to the Preferred
Securities by a "nationally recognized statistical rating organization," as that
term is defined for purposes of Rule 436(g)(2) under the Securities Act.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof or any other entity.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit B.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount with respect to the assets
of the Trust of $[ ] and having the rights provided therefor in this
Declaration, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration solely
in its capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, each Note Redemption Date.
"Redemption Price" means, with respect to any Trust Security,
$[ ] per Trust Security, plus accumulated and unpaid Distributions (including
any Additional Amounts) to the date of redemption.
"Relevant Trustee" has the meaning specified in Section
8.09(a).
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 5.04.
"Securityholder" has the same meaning as "Holder."
"Special Event" means a Tax Event or an Investment Company
Event (each as set forth in the Notes).
"Sponsor" has the meaning specified in the preamble to this
Declaration.
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"Successor Delaware Trustee" has the meaning specified in
Section 8.09(c).
"Successor Property Trustee" has the meaning specified in
Section 8.09(b).
"Successor Securities" has the meaning specified in Section
9.05.
"Trust" means the Delaware statutory trust continued hereby
and identified on the cover page of this Declaration.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
amended and in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Notes, (b) any cash on deposit
in, or owing to, the Payment Account and (c) all proceeds and rights in respect
of the foregoing to be held by the Property Trustee pursuant to the terms of
this Declaration for the benefit of the Securityholders.
"Trust Securities Certificate" means any one of the Common
Securities Certificates, the Global Certificates or the Preferred Securities
Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trustees" has the meaning specified in the preamble to this
Declaration.
"Underwriting Agreement" means the Underwriting Agreement
dated as of [ ] for the offering and sale of the Preferred Securities.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 Name
The Trust continued by this Declaration shall be known as
"Delphi Trust [I] [II] [III] [IV]," as such name may be modified from time to
time by the Administrative Trustees following written notice to the Holders of
Trust Securities and the other Trustees. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the
Administrative Trustees.
Section 2.02 Office of the Delaware Trustee; Principal Place
of Business
The address of the Delaware Trustee in the State of Delaware
is c/o Bank One Delaware, Inc., Three Christina Centre, 201 Walnut Street,
Wilmington, Delaware 19801, Attention: Global Corporate Trust Service, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Securityholders and the Sponsor. The
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principal executive office of the Trust is c/o Delphi Corporation, 5725 Delphi
Drive, Troy, Michigan 48098.
Section 2.03 Organizational Expenses
The Sponsor shall pay organizational expenses of the Trust as
they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Sponsor shall make no
claim upon the Trust Property for the payment of such expenses.
Section 2.04 Issuance of the Preferred Securities
On [ ], the Sponsor, both on its own behalf and on behalf of
the Trust, pursuant to the Original Declaration, executed and delivered the
Underwriting Agreement, which action is hereby ratified and confirmed on behalf
of the Trust. The Administrative Trustees shall, on behalf of the Trust, issue
Preferred Securities having such terms as are set forth in this Declaration. On
the Closing Date, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.02 one or more permanent Global
Certificates in definitive, fully registered form which shall be delivered to
the Clearing Agency or a nominee thereof or a custodian therefor and registered
in the name of the Clearing Agency or a nominee thereof, in an aggregate amount
sold as provided in the Underwriting Agreement, against receipt of the purchase
price of such Preferred Securities of $[ ] per Preferred Security, which amount
the Administrative Trustees shall promptly deliver to the Property Trustee. The
number of Preferred Securities represented by a Global Certificate may from time
to time be increased or decreased by adjustments made on the records of the
Property Trustee, as Security Registrar, whereupon the Property Trustee, in
accordance with Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its records as
hereinafter provided.
Section 2.05 Subscription and Purchase of Notes; Issuance of
the Common Securities
On the Closing Date, an Administrative Trustee, on behalf of
the Trust, shall execute in accordance with Section 5.02 and deliver to the
Sponsor a single Common Securities Certificate registered in the name of the
Sponsor, in the aggregate amount acquired by the Sponsor on the Closing Date
pursuant to the Common Securities Purchase Agreement against receipt of the
purchase price of such Common Securities from the Sponsor in the amount of $[ ]
per Common Security, which amount the Administrative Trustees shall promptly
deliver to the Property Trustee. In the event the purchase price for the Common
Securities acquired by the Sponsor on the Closing Date as herein provided is not
an integral multiple of $[ ], a fractional Common Security will be issued.
Contemporaneously therewith, the Administrative Trustees, on behalf of the
Trust, shall on the Closing Date subscribe to and purchase from the Sponsor the
Notes, registered in the name of the Property Trustee (in its capacity as such)
and having an aggregate principal amount equal to the aggregate Liquidation
Amount of Preferred Securities and Common Securities acquired on the Closing
Date and, in satisfaction of the purchase price for such Notes, the Property
Trustee, on behalf of the Trust, shall deliver to the Sponsor the sum
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of the amounts delivered on the Closing Date to the Property Trustee pursuant to
(i) the third sentence of Section 2.04, and (ii) the first sentence of this
Section 2.05.
Section 2.06 Declaration of Trust
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Notes, (b) to distribute the Trust's income as provided in this Declaration
and (c) 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, pledge any of its assets or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust. The
Sponsor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent expressly set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. 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 Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807(a)
of the Delaware Statutory Trust Act and for taking such actions as are required
to be taken by a Delaware trustee under the Delaware Statutory Trust Act, and
shall not be entitled to exercise any powers or have any of the duties and
responsibilities of the Administrative Trustees or the Property Trustee
described in this Declaration.
Section 2.07 Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Declaration. Subject to the limitations set
forth in Section 2.06 and paragraph (b) of this Section, and in accordance with
the following provisions (i) and (ii), the Trustees shall have the exclusive
power, duty and the authority to cause the Trust to engage in the following
activities:
(i) As among the Trustees, each Administrative
Trustee (and no other Trustee) shall have the power and authority to
act on behalf of the Trust, acting alone or jointly, with respect to
the following matters:
(A) to issue and sell the Trust Securities,
provided, however, that the Trust may issue no more than one
series of Preferred Securities and no more than one series of
Common Securities, and, provided, further, that there shall be
no interests in the Trust other than the Trust Securities, and
the issuance of Trust Securities shall be limited to
simultaneous issuances of both Preferred Securities and Common
Securities on the Closing Date in accordance with the
provisions of the Underwriting Agreement and the Common
Securities Purchase Agreement subject to the issuance of Trust
Securities pursuant to Section 5.05 and Successor Securities
pursuant to Section 9.05;
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(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Common Securities Purchase Agreement, the Certificate
Depository Agreement and the Note Purchase Agreement;
(C) to assist in the registration of the
Preferred Securities under the Securities Act, and under state
securities or blue sky laws, and the qualification of this
Declaration as a trust indenture under the Trust Indenture
Act;
(D) to assist in the listing of the
Preferred Securities upon such securities exchange or
exchanges as shall be determined by the Sponsor and the
registration of the Preferred Securities under the Securities
Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing (only to the extent that such
listing or registration is requested by the Sponsor);
(E) to appoint a Paying Agent, a Security
Registrar and an authenticating agent in accordance with this
Declaration;
(F) to the extent provided in this
Declaration, to wind up the affairs of and liquidate the Trust
and prepare, execute and file the certificate of cancellation
with the Secretary of State of the State of Delaware;
(G) to execute and deliver letters,
documents or instruments with the Clearing Agency relating to
the Preferred Securities;
(H) to obtain a CUSIP number for the
Preferred Securities;
(I) 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, and redemptions and to issue
relevant notices to the Holders of Preferred Securities and
Holders of Common Securities as to such actions and applicable
record dates;
(J) to bring or defend, pay, collect,
compromise, arbitrate, resort to legal action, or otherwise
adjust claims or demands of or against the Trust, unless
pursuant to the terms of this Declaration, the Property
Trustee has the exclusive power to take such action;
(K) 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;
(L) 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
Administrative Trustee;
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(M) to incur expenses that are necessary or
incidental to carry out any of the purposes of the Trust;
(N) 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; and
(O) to take any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration including, but not limited to:
(I) causing the Trust not to be
deemed to be an "investment company"
required to be registered under the 1940
Act;
(II) causing the Trust to be
classified for United States federal income
tax purposes as a grantor trust; and
(III) cooperating with the Sponsor
to ensure that the Notes will be treated as
indebtedness of the Sponsor for United
States federal income tax purposes; provided
that such action does not adversely affect
in any material respect the interests of
Securityholders except as otherwise provided
in Section 10.02(a).
(ii) As among the Trustees, the Property Trustee
shall have the power, duty and authority to act on behalf of the Trust
only with respect to the following matters:
(A) the establishment and maintenance of the
Payment Account;
(B) the receipt of and taking legal title to
the Notes;
(C) the collection of interest, principal
and any other payments made in respect of the Notes in the
Payment Account;
(D) the distribution from the Trust Property
of amounts owed to the Securityholders in respect of the Trust
Securities;
(E) the exercise of all of the rights,
powers and privileges of a holder of the Notes;
(F) the sending of notices of default, other
notices and other information regarding the Trust Securities
and the Notes to the Securityholders in accordance with this
Declaration;
(G) the distribution of the Trust Property
in accordance with the terms of this Declaration;
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(H) to the extent provided in this
Declaration, the winding up of the affairs of and liquidation
of the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default, the taking of
any action incidental to the foregoing as is necessary or
advisable or as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Declaration and protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any
particular Securityholder);
(J) to act as Paying Agent and/or Security
Registrar to the extent appointed as such hereunder; and
(K) subject to this Section 2.07(a)(ii), the
Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set
forth in Section 2.07(a)(i).
(b) So long as this Declaration remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trust shall not, and the Trustees shall
not and shall cause the Trust not to (i) invest any proceeds received by the
Trust from holding the Notes (rather, the Trustees shall distribute all such
proceeds to the Securityholders pursuant to the terms of this Declaration and
the Trust Securities), acquire any investments or engage in any activities not
authorized by this Declaration, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or interests
therein, including to Securityholders, except as expressly provided herein,
(iii) take any action that would cause the Trust to fail or cease to qualify as
a "grantor trust" for United States federal income tax purposes, (iv) make any
loans or incur any indebtedness for borrowed money or issue any other debt, (v)
take or consent to any action that would result in the placement of a Lien on
any of the Trust Property, (vi) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the Trust Securities in any way
whatsoever except as permitted by the terms of this Declaration, or (vii) issue
any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities. The Administrative
Trustees shall defend all claims and demands of all Persons at any time claiming
any Lien on any of the Trust Property adverse to the interest of the Trust or
the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following actions
(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):
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(i) to file with the Commission and to execute on
behalf of the Trust a registration statement on the appropriate form in
relation to the Preferred Securities, including any amendments thereto;
(ii) to determine the states and foreign
jurisdictions in which to take appropriate action to qualify or
register for sale all or part of the Preferred Securities and to do any
and all such acts, other than actions which must be taken by or on
behalf of the Trust, and advise the Trustees of actions they must take
on behalf of the Trust, and prepare for execution and filing any
documents to be executed and filed by the Trust or on behalf of the
Trust, as the Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such states and foreign jurisdictions;
(iii) to the extent necessary, to prepare for filing
by the Trust with the Commission and to execute on behalf of the Trust
a registration statement on Form 8-A relating to the registration of
the Preferred Securities under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including any amendments thereto;
(iv) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing upon notice of
issuance of any Preferred Securities; and
(v) any other actions necessary or incidental to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or taxed as a
corporation for United States federal income tax purposes and so that the Notes
will be treated as indebtedness of the Sponsor for United States federal income
tax purposes. In this connection, the Sponsor and the Administrative Trustees
are authorized to take any action, not inconsistent with applicable law, the
certificate of trust or this Declaration, that each of the Sponsor and the
Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes, so long as such action does not adversely affect in
any material respect the interests of the Holders of the Preferred Securities
except as otherwise provided in Section 10.02(a).
Section 2.08 Assets of the Trust
The assets of the Trust shall consist of only the Trust
Property.
Section 2.09 Title to Trust Property
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the Trust and the
Securityholders in accordance with this Declaration. Each Securityholder 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.
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Section 2.10 Responsibilities of the Sponsor
(a) In connection with the issue and sale of the Preferred
Securities, the Sponsor is hereby appointed an agent of the Trust pursuant to
Section 3806(b)(7) of the Delaware Statutory Trust Act and in such capacity
shall have the exclusive right and responsibility to engage in the following
activities:
(i) to prepare a prospectus relating to the offering
of Preferred Securities by the Trust and to prepare for filing by the
Trust with the Commission, and execute on behalf of the Trust, a
registration statement on Form S-3 or on another appropriate form
(including, if appropriate, a registration statement under Rule 462(b)
of the Securities Act) and any pre-effective or post-effective
amendments thereto, relating to the registration under the Securities
Act of the Preferred Securities;
(ii) to determine the states in which to take
appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than
actions which must be taken by the Trust, and advise the Trust of
actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of
any such states;
(iii) to negotiate the terms of, and execute on
behalf of the Trust, the Underwriting Agreement providing for the sale
of the Preferred Securities; and
(iv) to execute and deliver letters, documents or
instruments on behalf of the Trust with any Clearing Agency.
(b) The Sponsor must exercise the powers set forth in this
Section 2.10 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 2.06, and the Sponsor shall not take any action
that is inconsistent with the purposes and functions of the Trust set forth in
Section 2.06.
(c) Subject to this Section 2.10, the Sponsor shall have none
of the powers or the authority of the Property Trustee set forth in Article
VIII.
Section 2.11 Certain Covenants of the Sponsor
(a) On the Closing Date, the Sponsor will purchase all of the
Common Securities issued by the Trust that shall represent an aggregate
Liquidation Amount of no less than 3% of the aggregate Liquidation Amount of the
Trust Securities being purchased on the Closing Date;
(b) The Sponsor shall maintain directly or indirectly 100%
ownership of the Common Securities, provided that certain successors that are
permitted by the Indenture may succeed to the Sponsor's ownership of the Common
Securities; and
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(c) The Sponsor will use its reasonable efforts, consistent
with the terms and provisions of this Declaration, to cause the Trust to remain
classified as a grantor trust and not as an association taxable as a corporation
for United States federal income tax purposes.
Section 2.12 Guarantee of Payment of Trust Obligations
(a) Subject to the terms and conditions of this Section 2.12,
the Sponsor, in its capacity as Sponsor and not as a Holder, hereby irrevocably
and unconditionally guarantees to each Person to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as due, of any and all costs, expenses or liabilities of the Trust
(other than obligations of the Trust to make payments to holders of a Trust
Security pursuant to the terms thereof) ("Obligations") to such Beneficiaries.
The Sponsor, in its capacity as Sponsor and not as a Holder, shall pay any and
all taxes (other than United States withholding taxes attributable to the Trust
or its assets) and all liabilities, costs and expenses with respect to such
taxes of the Trust.
(b) The agreement of the Sponsor in Section 2.12(a) is
intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice hereof.
(c) The agreement of the Sponsor set forth in Section 2.12(a)
shall terminate and be of no further force and effect upon the later of (a) the
date on which full payment has been made of all amounts payable to all Holders
of all the Preferred Securities (whether upon redemption, liquidation, exchange
or otherwise) and (b) the date on which there are no Beneficiaries remaining;
provided, however, that such agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any Holder of Preferred
Securities or any Beneficiary must restore payment of any sums paid under the
Preferred Securities, under any Obligation, under the Guarantee or under this
Declaration for any reason whatsoever. Such agreement is continuing,
irrevocable, unconditional and absolute.
Section 2.13 Execution of Documents
Unless otherwise determined by the Sponsor or the
Administrative Trustees, and except as otherwise required by the Delaware
Statutory Trust Act, the Trust Indenture Act or this Declaration, any
Administrative Trustee is authorized to execute on behalf of the Trust any
documents that the Administrative Trustees have the power and authority to
execute pursuant to this Declaration.
ARTICLE III
PAYMENT ACCOUNT
Section 3.01 Payment Account
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. Except as set forth in Section 5.09 hereof,
the Property Trustee and any agent of the Property Trustee shall have exclusive
control and sole right of withdrawal with respect to
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the Payment Account for the purpose of making deposits in and withdrawals from
the Payment Account in accordance with this Declaration. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Notes. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; EXCHANGE
Section 4.01 Distributions
(a) Distributions on the Trust Securities shall be cumulative
and shall accrue from the date of original issuance, or the most recent
Distribution Date (as defined herein) and, except in the event that the Sponsor
exercises its right to defer the payment of interest on the Notes pursuant to
the Notes, shall be payable [quarterly] in arrears on [ ], [ ], [ ] and [ ] of
each year, commencing on [ ] (which dates correspond to the interest payment
dates on the Notes), when, as and if available for payment by the Property
Trustee, as further described in Section 4.01(c). In the event that the Sponsor
exercises its right to defer the payment of interest on the Notes pursuant to
the Notes, Distributions on the Trust Securities shall be deferred for a
corresponding period and shall be payable in arrears on the date of the
corresponding interest payment on the Notes, when, as and if available for
payment by the Property Trustee, as further described in Section 4.01(c). If any
date on which Distributions are otherwise payable on the Trust Securities is not
a Business Day, then the payment of such Distributions shall be made on the next
succeeding day which is a Business Day (and no interest shall accrue for the
period from and after such date until the next succeeding Business Day) with the
same force and effect as if made on such date (each date on which Distributions
are payable in accordance with this Section 4.01(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property, and the Distributions on the Trust Securities
shall be payable at a rate of [ ]% per annum of the Liquidation Amount of the
Trust Securities, such rate being the rate of interest payable on the Notes to
be held by the Property Trustee. The amount of Distributions payable for any
period shall be computed on the basis of a 360-day year of twelve 30-day months.
For periods less than a full month, Distributions shall reflect interest on
Notes computed on the basis of the actual number of elapsed days based on a
360-day year. The amount of Distributions payable for any period shall include
the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
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(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Security Register for the Trust Securities on the relevant record date, which
shall be the date which is the fifteenth day (whether or not a Business Day)
next preceding such Distribution Date.
Section 4.02 Optional Redemption, Mandatory Redemption and
Special Event Redemption
(a) Upon an optional redemption of Notes, the proceeds from
such redemption shall be applied to redeem Trust Securities having an aggregate
Liquidation Amount equal to the aggregate principal amount of the Notes so
redeemed by the Sponsor at the Optional Redemption Price. Upon a Special Event
redemption or a mandatory redemption (whether at maturity or upon acceleration
of the Notes) of Notes, the proceeds from such redemption shall be applied to
redeem Trust Securities having an aggregate Liquidation Amount equal to the
aggregate principal amount of the Notes so redeemed by the Sponsor, at the
Redemption Price.
(b) Notice of redemption (which notice will be irrevocable)
shall be given by the Property Trustee by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date to
the Sponsor and each Holder of Trust Securities to be redeemed, at such Holder's
address as it appears in the Security Register. All notices of redemption shall
state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption
Price, as the case may be;
(iii) the CUSIP number;
(iv) if less than all of the Outstanding Trust
Securities are to be redeemed, the identification and the aggregate
Liquidation Amount of the particular Trust Securities to be redeemed;
(v) that, on the Redemption Date, the Redemption
Price or the Optional Redemption Price, as the case may be, will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
(vi) the place or places where such Trust Securities
are to be surrendered for payment of the Redemption Price or the
Optional Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price or the Optional Redemption Price, as
the case may be, with the proceeds from the contemporaneous redemption of Notes.
Redemptions of the Trust Securities shall be made and the Redemption Price or
the Optional Redemption Price, as the case may be, shall be payable on each
Redemption Date only to the extent that the Trust has funds
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then on hand and available in the Payment Account for the payment of such
Redemption Price or the Optional Redemption Price, as the case may be.
(d) If the Property Trustee gives a notice of redemption
pursuant to Section 4.02(b) in respect of any Preferred Securities, then, by
12:00 noon, New York City time, on the Redemption Date, subject to Section
4.02(c), the Property Trustee will irrevocably deposit with the Paying Agent for
the Preferred Securities funds sufficient to pay the applicable Redemption Price
or Optional Redemption Price, as the case may be, on such Preferred Securities
and will give the Paying Agent irrevocable instructions and authority to pay the
applicable Redemption Price or the Optional Redemption Price, as the case may
be, to the Clearing Agency or, if the Preferred Securities are no longer in
book-entry only form, to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on the
Security Register for the Trust Securities on the relevant record dates for the
related Distribution Dates. If notice of redemption shall have been given and
funds deposited as required, then, upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price or the
Optional Redemption Price, as the case may be, but without interest on such
Optional Redemption Price or Redemption Price, and such Trust Securities will
cease to be Outstanding. In the event that any date on which any Redemption
Price or the Optional Redemption Price, as the case may be, is payable is not a
Business Day, then payment of the Redemption Price or the Optional Redemption
Price, as the case may be, payable on such date will be made on the next
succeeding day which 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.
(e) If less than all the Outstanding Trust Securities are to
be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Common Securities and the Preferred Securities
that are to be redeemed. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by lot or by such other method as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $[ ] or an integral multiple of $[ ] in excess thereof) of
the Liquidation Amount of the Preferred Securities. The Property Trustee shall
promptly notify the Security Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed; it being
understood that, in the case of Preferred Securities registered in the name of
and held of record by the Clearing Agency (or any successor) or any nominee of
the Clearing Agency or any successor, the distribution of the proceeds of such
redemption will be made in accordance with the procedures of the Clearing Agency
or its nominee. For all purposes of this Declaration, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or to
be redeemed only in part, to the portion of the aggregate Liquidation Amount of
Preferred Securities which has been or is to be redeemed. In the event of any
redemption in part, the Trust shall not be required to (i) issue, register the
transfer of or exchange any Preferred Security during a period beginning at the
opening of
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business 15 days before any selection for redemption of Preferred Securities and
ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all holders of Preferred
Securities to be so redeemed or (ii) register the transfer of or exchange any
Preferred Securities so selected for redemption, in whole or in part, except for
the unredeemed portion of any Preferred Securities being redeemed in part.
Section 4.03 [Reserved]
Section 4.04 Subordination of Common Securities
Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price (or the applicable Optional Redemption
Price) of, the Trust Securities, as applicable, shall be made pro rata based on
the Liquidation Amount of such Trust Securities; provided, however, that if on
any Distribution Date or Redemption Date an Event of Default shall have occurred
and be continuing, (i) no payment of any Distribution (including Additional
Amounts, if applicable) on, or the Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or other acquisition
of Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price (or the applicable Optional Redemption Price) the full amount of such
Redemption Price (or applicable Optional Redemption Price) on all Outstanding
Preferred Securities then called for redemption, shall have been made or
provided for, and (ii) all funds immediately available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions (or
the applicable Additional Amounts, if applicable) on, or the Redemption Price
(or the applicable Optional Redemption Price) of, Preferred Securities then due
and payable.
Section 4.05 Payment Procedures
Payments in respect of the Preferred Securities shall be made
by (i) check mailed to the address of the Person entitled thereto as such
address shall appear on the Security Register, (ii) wire transfer of immediately
available funds to an account maintained by the Person entitled thereto as
specified in the Security Register or (iii), if the Preferred Securities are
held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds, in accordance with the Certificate
Depository Agreement, on the applicable Distribution Dates. Payments in respect
of the Common Securities shall be made in such manner as shall be mutually
agreed between the Property Trustee and the Holder of the Common Securities.
Section 4.06 Tax Returns and Reports
The Administrative Trustees shall prepare (or cause to be
prepared), at the Sponsor's expense, and file (or cause to be filed) all United
States federal, state and local tax and information returns and reports required
to be filed by or in respect of the Trust. In this regard, the Administrative
Trustees shall (a) prepare and file (or cause to be prepared or filed) Form 1041
or the appropriate Internal Revenue Service form required to be filed in respect
of the Trust in each taxable year of the Trust and (b) prepare and furnish (or
cause to be prepared and
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furnished) to each Securityholder a Form 1099 or the appropriate Internal
Revenue Service form required to be furnished to such Securityholder or the
information required to be provided on such form. The Administrative Trustees
shall provide (or cause to be provided) the Sponsor and the Property Trustee
with a copy of all such returns, reports and schedules promptly after such
filing or furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities. To the extent that the Trust is required to withhold and pay over
any amounts to any authority with respect to Distributions or allocations to any
Holder, the amount withheld shall be deemed to be a distribution in the amount
of the withholding to the Holder. In the event of any claimed over-withholding,
Holders shall be limited to an action against the applicable jurisdiction. If
the amount required to be withheld was not withheld from actual Distributions
made, the Trust may reduce subsequent Distributions by the amount of such
withholding (but not by the amount of any liability imposed on the Trust as
withholding agent).
Section 4.07 Payment of Taxes, Duties, Etc. of the Trust
Upon receipt under the Notes of Additional Sums, the Property
Trustee, upon receipt of written notice and direction from the Sponsor or the
Administrative Trustees, shall promptly pay from such Additional Sums any taxes,
duties or governmental charges of whatsoever nature (other than withholding
taxes), as indicated in such notice, imposed on the Trust by the United States
or any other taxing authority.
Section 4.08 Payments under Indenture
Any amount payable hereunder to any Holder of Preferred
Securities (and any Owner with respect thereto) shall be reduced by the amount
of any corresponding payment such Holder (or Owner) has directly received
pursuant to the Indenture in accordance with the terms of Section 6.08 hereof.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01 Initial Ownership
Upon the formation of the Trust and until the issuance of the
Trust Securities, and at any time during which no Trust Securities are
Outstanding, the Sponsor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates
The Preferred Securities Certificates shall be issued in
minimum denominations of $[ ] Liquidation Amount and integral multiples of $[ ]
in excess thereof, and the Common Securities Certificates shall be issued in
denominations of $[ ] Liquidation Amount and integral multiples thereof
(provided that if a fractional Common Security is issued pursuant to Section
2.05, a Common Securities Certificate will be issued that will represent such
fractional Common
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Security). The consideration received by the Trust for the issuance of the Trust
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust. The Trust Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee and the Preferred Securities Certificates shall be
authenticated by the Property Trustee. Trust Securities Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Declaration,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03 Delivery of Trust Securities Certificates
(a) On the Closing Date, the Administrative Trustees shall
cause Trust Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.04 and 2.05, to be executed on behalf of the Trust and
delivered, without further corporate action by the Sponsor, in authorized
denominations. A Common Securities Certificate shall not be valid until executed
by at least one Administrative Trustee. A Preferred Securities Certificate shall
not be valid until executed by at least one Administrative Trustee and
authenticated by the manual signature of an authorized signatory of the Property
Trustee. The manual signature of the Property Trustee shall be conclusive
evidence that the Preferred Securities Certificate has been authenticated under
this Declaration. Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Preferred Securities
Certificates for original issue. The signature of any Administrative Trustee on
the Trust Securities Certificates may be manual or facsimile.
(b) The Property Trustee may appoint an authenticating agent
reasonably acceptable to the Administrative Trustees to authenticate Preferred
Securities Certificates. An authenticating agent may authenticate Preferred
Securities Certificates 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 to deal with the Sponsor or an Affiliate with respect to the
authentication of Preferred Securities.
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities; Restrictions on Transfer
(a) The Administrative Trustees shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a register or
registers for the purpose of registering Trust Securities Certificates and
transfers and exchanges of Preferred Securities Certificates (herein referred to
as the "Securities Register") in which the registrar designated by the
Administrative Trustees (the "Securities Registrar"), subject to such reasonable
regulations as they may prescribe, shall provide for the registration of
Preferred Securities Certificates and Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities
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Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. [ ] shall be the initial Security
Registrar. Subject to the other provisions of this Declaration regarding
restrictions on transfer, upon surrender for registration of transfer of any
Preferred Security Certificate at an office or agency of the Security Registrar
designated pursuant to Section 5.08 for such purpose, an Administrative Trustee
shall execute, and the Property Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates of any authorized denominations and of a like aggregate
principal amount. At the option of the Holder, and subject to the other
provisions of this Section 5.04, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates of any authorized
denomination and of a like Liquidation Amount, upon surrender of the Preferred
Securities Certificates to be exchanged at any such office or agency. Whenever
any Preferred Securities Certificates are so surrendered for exchange, an
Administrative Trustee shall execute, and the Property Trustee shall
authenticate and deliver, the Preferred Securities Certificates which the Holder
making the exchange is entitled to receive.
All Preferred Securities Certificates issued upon any registration of
transfer or exchange of Preferred Securities Certificates shall be the valid
obligations of the Trust, evidencing the same rights, and entitled to the same
benefits under this Declaration, as the Preferred Securities Certificates
surrendered upon such registration of transfer or exchange.
Every Preferred Security Certificate presented or surrendered for
registration of transfer or for exchange shall (if so requested by the
Administrative Trustees or the Security Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Administrative Trustees and the Security Registrar duly executed, by the Holder
thereof or such Holder's attorney duly authorized in writing. No service charge
shall be made for any registration of transfer or exchange of Preferred
Securities Certificates, but the Security Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Preferred Securities Certificates.
The Property Trustee shall only authenticate Preferred Security
Certificates delivered to it by authorized officers of the Security Registrar or
an Administrative Trustee specifically for authentication at such time or upon
the written order of an Administrative Trustee. The Property Trustee shall be
fully protected and shall incur no liability for authenticating any Preferred
Security Certificate delivered to it for authentication as aforesaid or in
accordance with a written order of an Administrative Trustee.
(b) Notwithstanding any other provision of this Declaration or the
Preferred Securities, transfers and exchanges of Preferred Securities
Certificates and beneficial interests in a Global Certificate of the kinds
specified in this Section 5.04(b) shall be made only in accordance with this
Section 5.04(b).
(i) Non-Global Certificate to Global Certificate. If the Holder
of a Preferred Securities Certificate (other than a Global Certificate)
wishes at any time to transfer all or any portion of such Preferred
Securities Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Global Certificate, such
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transfer may be effected only in accordance with the provisions of this
Section 5.4(b)(i) and Section 5.13 and subject to the Applicable
Procedures. Upon receipt by the Security Registrar of (A) such Preferred
Securities Certificate and instructions satisfactory to the Security
Registrar directing that a beneficial interest in the Global Certificate of
a specified number of Preferred Securities not greater than the number of
Preferred Securities represented by such Preferred Securities Certificate
be credited to a specified Clearing Agency Participant's account, then the
Security Registrar shall cancel such Preferred Securities Certificate (and
issue a new Preferred Securities Certificate in respect of any
untransferred portion thereof) and increase the aggregate Liquidation
Amount of the Global Certificate by the Liquidation Amount represented by
such Preferred Securities so transferred as provided in Section 5.11;
provided that if a Global Certificate is not then outstanding, an
Administrative Trustee on behalf of the Trust may issue and the Property
Trustee may authenticate a new Global Certificate equal to the principal
amount of such Definitive Preferred Securities Certificates to be so
exchanged as provided in Section 5.11.
(ii) Non-Global Certificate to Non-Global Certificate. A
Preferred Securities Certificate that is not a Global Certificate may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Preferred Securities Certificate that is not a Global
Certificate as provided in Section 5.04(a).
(iii) Global Certificate to Non-Global Certificate. A beneficial
interest in a Global Certificate may be exchanged for a Preferred
Securities Certificate that is not a Global Certificate only as provided in
Section 5.11.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates
If (a) any mutilated Trust Securities Certificate shall be surrendered
to the Security Registrar, or if the Security Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Security Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for authentication, where applicable, and delivery,
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Trust Securities Certificate, a new Trust Securities Certificate of like
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Security Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicative Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders
The Property Trustee and the Security Registrar shall treat the Person
in whose name any Trust Securities Certificate shall be registered in the
Security Register as the owner of
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such Trust Securities Certificate for the purpose of receiving Distributions and
for all other purposes whatsoever, and neither the Property Trustee nor the
Security Registrar shall be bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses
The Administrative Trustees or the Sponsor shall furnish or cause to be
furnished (unless the Property Trustee is acting as Security Registrar with
respect to the Trust Securities under the Declaration) a list, in such form as
the Property Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date (a) to the Property Trustee,
[quarterly] at least 5 Business Days before each Distribution Date, and (b) to
the Property Trustee, within 30 days after receipt by the Sponsor of a request
therefor from the Property Trustee in order to enable the Property Trustee to
discharge its obligations under this Declaration, in each case to the extent
such information is in the possession or control of the Administrative Trustees
or the Sponsor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee in its capacity as Security
Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Declaration or under the
Trust Securities, and the corresponding rights of the Trustee shall be as
provided in the Trust Indenture Act, except to the extent Section 3819 of the
Delaware Statutory Trust Act would require greater access to such information,
in which case the latter shall apply. Each Holder, by receiving and holding a
Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the Sponsor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 5.08 Maintenance of Office or Agency
The Security Registrar shall maintain in Columbus, Ohio an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Security Registrar initially designates 1111 Polaris Parkway,
Suite 1K-Mail Code OH1-0181, Columbus, Ohio 43440, Attention: Global Corporate
Trust Service, as its corporate trust office for such purposes. The Security
Registrar shall give prompt written notice to the Sponsor and to the
Securityholders of any change in the location of the Security Register or any
such office or agency.
Section 5.09 Appointment of Paying Agent
The Trust shall maintain an office or agency (the "Paying Agent") where
the Preferred Securities may be presented for payment, which shall initially be
in [ ]. The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent for any reason, including if such
Trustees determine in their sole discretion that the Paying Agent shall have
failed to perform its obligations under this Declaration in any material
respect. The Property Trustee shall have no
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duty to monitor or oversee any of the activities of any Paying Agent (other than
itself), including but not limited to any withdrawals from the Payment Account,
and the Property Trustee shall be fully protected and shall incur no liability
in connection with any action or omission of any such Paying Agent. The Paying
Agent shall initially be [ ], and any co-paying agent chosen by the
Administrative Trustees and the Sponsor in their sole discretion. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Property Trustee and the Sponsor. In the event that
[ ] shall no longer be the Paying Agent or a successor Paying Agent shall resign
or its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is reasonably acceptable to the Property Trustee and the Sponsor
to act as Paying Agent (which shall be a bank or trust company). Each successor
Paying Agent or any additional Paying Agent shall agree with the Trustees that,
as Paying Agent, such successor Paying Agent or additional Paying Agent will
hold all sums, if any, held by it for payment to the Securityholders in trust
for the benefit of the Securityholders entitled thereto until such sums shall be
paid to each Securityholder. The Paying Agent shall return all unclaimed funds
to the Property Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.01, 8.03 and 8.06 shall apply to the Property Trustee
also in its role as Paying Agent, for so long as the Property Trustee shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.10 Ownership of Common Securities by Sponsor
On the Closing Date, the Sponsor shall acquire beneficial and record
ownership of the Common Securities. The Sponsor agrees at all times to maintain
direct or indirect beneficial ownership of the Common Securities, including
through beneficial ownership of the Common Securities by an Affiliate of the
Sponsor. To the fullest extent permitted by law, any attempted transfer of the
Common Securities, other than a transfer to an Affiliate of the Sponsor or a
transfer to certain successors that are permitted by the Indenture to succeed to
the Sponsor's ownership of the Common Securities, shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Sponsor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED UNDER APPLICABLE LAW AND THE AMENDED AND RESTATED DECLARATION
OF TRUST."
Section 5.11 Global Certificates; Non-Global Certificates; Common
Securities Certificate
(a) Pursuant to Section 2.04, on the Closing Date Preferred Securities
will be issued in book-entry form through the execution of one or more permanent
Global Certificates in definitive fully registered form delivered to the
Clearing Agency or nominee thereof or a custodian therefor and registered in the
name of the Clearing Agency or nominee thereof and no Owner will receive a
Definitive Preferred Securities Certificate except as provided in Section 5.13.
Each Global Certificate authenticated under this Declaration shall be registered
in the name of the Clearing Agency designated by the Sponsor for such Global
Certificate or a nominee thereof and delivered to such Clearing Agency or a
nominee thereof or custodian therefor, and each such Global Certificate shall
constitute a Preferred Security Certificate for all purposes of this
Declaration.
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(b) If a Global Certificate is to be exchanged for one or more
Definitive Preferred Securities Certificates or canceled in whole, it shall be
surrendered by or on behalf of the Clearing Agency, its nominee or custodian to
the Security Registrar, for exchange or cancellation as provided in this Article
V. If any Global Certificate is to be exchanged for Definitive Preferred
Securities Certificates or canceled in part, or if a Definitive Preferred
Securities Certificate is to be exchanged in whole or in part for a beneficial
interest in any Global Certificate, in each case, as provided in Section 5.04,
then either (i) such Global Certificate shall be so surrendered for exchange or
cancellation as provided in this Article V or (ii) the Liquidation Amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or canceled, or equal to the principal amount of such
Definitive Preferred Security Certificates to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Security Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to its records.
If at any time the Holder of a Definitive Preferred Securities Certificate
wishes to transfer all or any portion of such Definitive Preferred Securities
Certificate to a Person who wishes to take delivery thereof in the form of a
beneficial interest in a Global Certificate, as provided in Section 5.04, a
Global Certificate is not then outstanding, an Administrative Trustee on behalf
of the Trust may issue and the Property Trustee may authenticate a new Global
Certificate equal to the principal amount of such Definitive Preferred
Securities Certificates to be so exchanged. Upon any such surrender or
adjustment of a Global Certificate, the Property Trustee shall, subject to
Section 5.04 and as otherwise provided in this Article V, authenticate and
deliver any Definitive Preferred Securities Certificates issuable in exchange
for such Global Certificate (or any portion thereof) to or upon the order of,
and registered in such names as may be directed by, the Clearing Agency or its
authorized representative.
(c) Upon the request of the Property Trustee in connection with the
occurrence of any of the events specified in Section 5.11(b), the Sponsor shall
cause as promptly as practicable to be made available to the Property Trustee a
reasonable supply of Definitive Preferred Securities Certificates. The Property
Trustee shall be entitled to conclusively rely upon any order, direction or
request of the Clearing Agency or its authorized representative which is given
or made pursuant to this Article V if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(d) Every Preferred Security Certificate authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, a Global
Certificate or any portion thereof, whether pursuant to this Article V or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Certificate, unless such Preferred Security Certificate is registered in
the name of a Person other than the Clearing Agency for such Global Certificate
or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of a
Global Certificate, shall be the Holder of such Global Certificate for all
purposes under the Declaration and the Preferred Securities, and owners of
beneficial interests in a Global Certificate shall hold such interests pursuant
to the Applicable Procedures. Accordingly, any such owner's beneficial interest
in a Global Certificate will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or its
nominee or its
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participants and such owners of beneficial interests in a Global Certificate
will not be considered the owner or holders of such Global Certificate for any
purpose of this Declaration or the Preferred Securities.
(f) On the Closing Date, a single Common Securities Certificate
representing the Common Securities shall be issued to the Sponsor in the form of
a definitive Common Securities Certificate.
Section 5.12 Notices to Clearing Agency
To the extent that a notice or other communication to the Owners is
required under this Declaration, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to provide notices directly to the Owners.
Section 5.13 Definitive Preferred Securities Certificates
Notwithstanding any other provision in this Declaration, no Global
Certificate may be exchanged in whole or in part for Definitive Preferred
Securities Certificates registered, and no transfer of a Global Certificate in
whole or in part may be registered, in the name of any Person other than the
Clearing Agency for such Global Certificate or a nominee thereof unless (i) such
Clearing Agency (A) has notified the Sponsor that it is unwilling or unable to
continue as Clearing Agency for such Global Certificate or (B) has ceased to be
a clearing agency registered as such under the Securities Exchange Act of 1934,
as amended, and in either case the Trust and the Sponsor thereupon fails to
appoint a successor Clearing Agency within 90 days, (ii) the Sponsor, at its
option, notifies the Property Trustee in writing that it elects to cause the
issuance of the Preferred Securities in definitive non-global registered
certificated form or (iii) there shall have occurred and be continuing an Event
of Default or any event which after notice or lapse of time or both would be an
Event of Default and the Holders of a majority in an aggregate Liquidation
Amount of the Outstanding Preferred Securities determine that such Global
Certificate will be exchangeable for Definitive Preferred Securities
Certificates. In all cases, Definitive Preferred Securities Certificates
delivered in exchange for any Global Certificate or beneficial interests therein
will be registered in the names, and issued in any approved denominations,
requested by or on behalf of the Clearing Agency (in accordance with its
customary procedures).
Section 5.14 Rights of Securityholders
The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.09, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Declaration. The Trust Securities
shall have no preemptive or similar rights and, when issued and delivered to
Securityholders against payment of the purchase price therefor and
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otherwise in accordance with this Declaration, shall be deemed validly issued,
fully paid and nonassessable undivided beneficial interests in the assets of the
Trust. The Holders of the Trust Securities, in their capacities as such, shall
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
ARTICLE VI
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01 Limitations on Voting Rights
(a) Except as provided in this Section 6.01, in Section 8.02 and
10.02 and in the Indenture and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Securityholders from time to time as partners or members of an
association.
(b) Subject to Section 8.02 hereof, the Holders of a majority in
aggregate Liquidation Amount of the Preferred Securities 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 exercise any trust or power conferred
upon the Property Trustee under the Declaration, including the right to direct
the Property Trustee to exercise the remedies available to it as a holder of the
Notes but excluding the right to direct the Property Trustee to consent to an
amendment, modification or termination of the Indenture (which shall be as
provided below). So long as any Notes are held by the Property Trustee, the
Trustees shall not (A) direct the time, method and place of conducting any
proceeding for any remedy available to the Note Trustee, or executing any trust
or power conferred on the Note Trustee with respect to such Notes, (B) waive any
past default which is waivable under the Indenture, (C) exercise any right to
rescind or annul a declaration that the principal of all the Notes shall be due
and payable or (D) consent to any amendment, modification or termination of the
Indenture or the Notes, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of a majority in aggregate
Liquidation Amount of all Outstanding Preferred Securities (except in the case
of clause (D), which consent, in the event that no Event of Default shall occur
and be continuing, shall be of the Holders of a majority in aggregate
Liquidation Amount of all Trust Securities, voting together as a single class);
provided, however, that where a consent under the Indenture would require the
consent of each holder of Notes affected thereby, no such consent shall be given
by the Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities,
except by a subsequent vote of the Holders of the Preferred Securities. The
Property Trustee shall notify all Holders of record of the Preferred Securities
of any notice of default received from the Note Trustee with respect to the
Notes. In addition to obtaining the foregoing approvals of the Holders of the
Preferred Securities and, if applicable, the Common Securities, prior to taking
any of the foregoing actions, the Administrative Trustees shall, at the expense
of the Sponsor, obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust will not be classified as an association
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taxable as a corporation or partnership for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Declaration provides for, or the
Trustees otherwise propose to effect the dissolution, winding-up or termination
of the Trust, other than pursuant to the terms of this Declaration, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities.
Section 6.02 Notice of Meetings
Notice of all meetings of the Holders of the Preferred Securities,
stating the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.08 to each Preferred Securityholder of
record, at its registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
Section 6.03 Meetings of Preferred Securityholders
(a) No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of the Holders of Preferred Securities to vote
on any matters as to which such Holders are entitled to vote.
(b) Holders of record of 50% of the Preferred Securities (based upon
their Liquidation Amount), present in person or by proxy, shall constitute a
quorum at any meeting of Securityholders. If a quorum is present at a meeting,
an affirmative vote by the Holders of record of Preferred Securities present, in
person or by proxy, holding more than a majority of the Preferred Securities
(based upon their Liquidation Amount) held by Holders of record of Preferred
Securities present, either in person or by proxy, at such meeting shall
constitute the action of the Securityholders, unless this Declaration requires a
greater number of affirmative votes.
Section 6.04 Voting Rights
Securityholders shall be entitled to one vote for each $[ ] of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote. Notwithstanding
that Holders of Preferred Securities are entitled to vote or consent under any
of the circumstances described above, any of the Preferred Securities that are
owned at such time by the Sponsor, the Administrative Trustees or any Affiliate
of the Sponsor or any Administrative Trustee shall, for purposes of such vote or
consent, be treated as if such Preferred Securities were not Outstanding.
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Section 6.05 Proxies, Etc.
At any meeting of Securityholders, any Securityholders entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When Trust Securities
are held jointly by several Persons, any one of them may vote at any meeting in
person or represented by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Declaration) shall consent to the
action in writing.
Section 6.07 Record Date for Voting and Other Purposes
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Declaration, or for the purpose of any other
action, the Property Trustee may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distributions or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08 Acts of Securityholders
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Declaration to be given,
made or taken by Securityholders or Owners may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Securityholders or Owners in person or by an agent duly appointed in writing;
and, except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an Administrative
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Securityholders or Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Declaration and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than the signer's individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of the signer's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which any Trustee receiving the same deems
sufficient. The ownership of Preferred Securities shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Securityholder of any Trust Security shall bind every
future Securityholder of the same Trust Security and the Securityholder of every
Trust Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security. Without limiting the
foregoing, a Securityholder entitled hereunder to take any action hereunder with
regard to any particular Trust Security may do so with regard to all or any part
of the Liquidation Amount of such Trust Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such Liquidation Amount.
(d) Upon the occurrence and continuation of an Event of Default, the
Holders of Preferred Securities shall rely on the enforcement by the Property
Trustee of its rights as holder of the Notes against the Sponsor. No Holder of
Preferred Securities may institute any action directly against the Sponsor under
the Indenture unless (i) such Holder shall have given the Property Trustee
written notice of the occurrence of an Event of Default and the continuance
thereof, (ii) the Holders of not less than 25% in Liquidation Amount of the
Preferred Securities then Outstanding shall have requested the Property Trustee
to institute such action and shall have offered the Property Trustee reasonable
indemnification therefor and (iii) the Property Trustee shall not have
instituted such action within 90 days of such request.
(e) Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such Event of Default is attributable to the
failure of the Sponsor to pay interest or principal on the Notes on the date
such interest or principal is otherwise payable (or in the case of redemption,
on the Redemption Date), then a Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Sponsor, for enforcement of
payment to such holder of the principal amount of or interest on Notes having a
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder after the respective due date specified in the Notes
(a "Direct Action"). In connection with any such Direct Action, the rights of
the Sponsor will be subrogated to the rights of any Holder of the Preferred
Securities to the extent of any payment made by the Sponsor to such Holder of
Preferred Securities as a result of such Direct Action.
(f) A Securityholder may institute a legal proceeding directly
against the Sponsor under the Guarantee to enforce its rights under the
Guarantee without first instituting a
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legal proceeding against the Guarantee Trustee (as defined in the Guarantee),
the Trust or any Person or entity.
(g) Each Securityholder, by acceptance of a beneficial interest in
the Preferred Securities, agrees to treat the Notes as indebtedness of the
Sponsor for all United States federal, state and local tax purposes.
Section 6.09 Inspection of Records
Upon reasonable prior written notice to the Administrative Trustees and
the Property Trustee, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.01 Representations and Warranties of the Property Trustee and
the Delaware Trustee
The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Sponsor and the Securityholders that (each such representation and warranty made
by the Property Trustee and the Delaware Trustee being made only with respect to
itself):
(a) the Property Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the
United States;
(b) the Delaware Trustee a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(c) each of the Property Trustee and the Delaware Trustee has
full corporate and, as applicable, trust power, authority and legal
right to execute, deliver and perform its obligations under this
Declaration and has taken all necessary action to authorize the
execution, delivery and performance by it of this Declaration;
(d) this Declaration has been duly authorized, executed and
delivered by each of the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of the Property
Trustee and the Delaware Trustee enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(e) the execution, delivery and performance by each of the
Property Trustee and the Delaware Trustee of this Declaration have
been duly authorized by all necessary corporate or other action on the
part of the Property Trustee and the Delaware Trustee
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and does not require any approval of stockholders of the Property
Trustee or the Delaware Trustee and such execution, delivery and
performance will not (i) violate either of the Property Trustee's or
the Delaware Trustee's charter or by-laws, (ii) to the best of its
knowledge without independent investigation, violate any provision of,
or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of any Lien on any
properties included in the Trust Property pursuant to the provisions of
any indenture, mortgage, credit agreement, license or other agreement
or instrument to which the Property Trustee or the Delaware Trustee is
a party or by which it is bound, or (iii) violate any law, governmental
rule or regulation of the United States, the State of Delaware or
[other jurisdiction of trustee], as the case may be, governing the
banking, corporate, or trust powers of the Property Trustee or the
Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Delaware Trustee;
(f) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Declaration nor the
consummation of any of the transactions by the Property Trustee or the
Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to,
any governmental authority or agency under any existing federal law
governing the banking, corporate or trust powers of the Property
Trustee or the Delaware Trustee, as the case may be, under the laws of
the United States, the State of Delaware or [other jurisdiction of
trustee]; and
(g) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge,
threatened against or affecting the Property Trustee or the Delaware
Trustee in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate,
would materially and adversely affect the Trust or would question the
right, power and authority of the Property Trustee or the Delaware
Trustee, as the case may be, to enter into or perform its obligations
as one of the Trustees under this Declaration.
Section 7.02 Representations and Warranties of Sponsor
The Sponsor hereby represents and warrants for the benefit of
the Securityholders that:
(a) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been duly authorized and will have
been duly and validly executed, issued and delivered by the Trustees
pursuant to the terms and provisions of, and in accordance with the
requirements of, this Declaration and the Securityholders will be, as
of such date, entitled to the benefits of this Declaration; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the
laws of the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the Property
Trustee or the Delaware Trustee, as the case may be, of this
Declaration.
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ARTICLE VIII
THE TRUSTEES
Section 8.01 Certain Duties and Responsibilities
(a) The duties and responsibilities of the Trustees shall be
as provided by this Declaration and, in the case of the Property Trustee, also
by the Trust Indenture Act. The Property Trustee, before the occurrence of any
Event of Default and after the curing or waiving of all Events of Default that
may have occurred, shall undertake to perform only such duties and obligations
as are specifically set forth in this Declaration and the Trust Indenture Act
and no implied covenants, duties or obligations 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 8.02) of which a
responsible officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such rights and powers vested in it by this Declaration
and the Trust Indenture Act, and use the same degree of care and skill in its
exercise, as a prudent individual would exercise or use under the circumstances
in the conduct of his or her own affairs. Notwithstanding the foregoing, no
provision of this Declaration shall require the Trustees to expend or risk their
own funds or otherwise incur any financial liability in the performance of any
of their duties hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
No Trustee shall be liable, responsible or accountable in damages or otherwise
to the Trust, any Holder of Trust Securities or any officer, director,
shareholder, employee, representative or agent of the Trust or its Affiliates
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Trustee in good faith on behalf of the Trust and in
a manner such Trustee reasonably believed to be within the scope of authority
conferred on such Trustee by this Declaration, except that a Trustee shall be
liable for any such loss, damage or claim incurred by reason of such Trustee's
gross negligence (or, in the case of the Property Trustee, negligence) or
willful misconduct with respect to such acts or omissions. To the extent that,
at law or in equity, an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the Securityholders,
such Administrative Trustee shall not be liable to the Trust or to any
Securityholder for such Administrative Trustee's good faith reliance on the
provisions of this Declaration or advice of counsel. The provisions of this
Declaration, to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Sponsor and the Securityholders to replace such other duties and liabilities
of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any
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amount distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section 8.01(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Declaration or,
in the case of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Holders of a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iii) the Property Trustee's sole duty with respect
to the custody, safekeeping and physical preservation of the Notes and
the Payment Account shall be to deal with such property as fiduciary
assets, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
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
Payment Account maintained by the Property Trustee pursuant to Section
3.01 and except to the extent otherwise required by law; and
(v) neither the Property Trustee nor the
Administrative Trustees shall be responsible for monitoring each
other's compliance or the compliance of the Sponsor with their
respective duties under this Declaration, nor shall the Property
Trustee or the Administrative Trustees be liable for each other's
default or misconduct or that of the Sponsor.
Section 8.02 Notice of Defaults
(a) Within ten days after the occurrence of any Event of Default
actually known to an officer of the Property Trustee involved in the
administration of this Declaration, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of such Event of
Default to the holders of Preferred Securities, the Administrative Trustees and
the Sponsor, unless such Event of Default shall have been cured or waived,
provided that, except for a default in the payment of principal of (or premium,
if any) or interest on any of the Notes, the Property Trustee shall be protected
in withholding such notice if and so long as a trust committee of directors
and/or responsible officers of the Property Trustee in good
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faith determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) Within ten days after the receipt of notice of the Sponsor's
exercise of its right to extend the interest payment period for the Notes
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.08, notice of such exercise to the
Securityholders, unless such exercise shall have been revoked.
(c) The Holders of a majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any Event of Default in respect of the Preferred Securities
and its consequences, provided that, if the underlying Note Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Notes (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 the
same proportion in Liquidation Amount of the Preferred Securities that
the relevant Super Majority represents of the aggregate principal
amount of the Notes outstanding.
The provisions of Section 6.01(b) and this Section 8.02(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 Preferred Securities, as permitted by the Trust Indenture Act. Upon such
waiver, any such default shall cease to exist, and any Event of Default with
respect to the Preferred Securities arising therefrom shall be deemed to have
been cured, for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or an Event of Default with respect to
the Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Preferred Securities of an Event of Default with respect to
the Preferred Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of any such Event of Default with respect to
the Common Securities for all purposes of this Declaration without any further
act, vote, or consent of the Holders of the Common Securities.
(d) The Holders of a majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any Event of Default with respect to the Common Securities and
its consequences, provided that, if the underlying Note Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this Section
8.02(d), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such
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Event of Default under the Declaration as provided below in this
Section 8.02(d), the Event of Default under the Declaration may only be
waived by the vote of the Holders of the same proportion in Liquidation
Amount of the Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the Notes outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Property Trustee will be deemed to be acting solely on behalf of the Holders
of the Preferred Securities and only the Holders of the Preferred Securities
will have the right to direct the Property Trustee in accordance with the terms
of the Securities. The provisions of Section 6.01(b) and this Section 8.02(d)
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 Common Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section 8.02(d), upon
such waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(e) A waiver of a Note Event of Default under the Indenture by
the Property Trustee at the written direction of the Holders of the Preferred
Securities constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 8.02(e) 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 Preferred Securities, as permitted by the Trust Indenture Act.
Section 8.03 Certain Rights of Property Trustee
(a) Subject to the provisions of Section 8.01:
(i) the Property Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting in good
faith upon any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond, Note, note, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) if no Event of Default has occurred and is
continuing and, (i) in performing its duties under this Declaration the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions in this Declaration
the Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein or (iii) the Property Trustee is
unsure of the application of any provision of this Declaration, then,
except as to any matter as to which the Holders of Preferred Securities
are entitled to vote under the terms of this Declaration, the Property
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Trustee shall deliver a notice to the Sponsor requesting written
instructions of the Sponsor as to the course of action to be taken and
the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Sponsor; provided, however,
that if the Property Trustee does not receive such instructions of the
Sponsor within ten Business Days after it has delivered such notice, or
such reasonably shorter period of time set forth in such notice (which
to the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such
action not inconsistent with this Declaration as it shall deem
necessary, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
(iii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
(iv) whenever in the administration of this
Declaration, the Property Trustee shall deem it desirable that a matter
be established before undertaking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate and an
Opinion of Counsel which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Administrative Trustees;
(v) the Property Trustee shall have no duty to
accomplish any recording, filing or registration of any instrument
(including any financing or continuation statement or any filing under
tax or securities laws) or any rerecording, refiling or reregistration
thereof;
(vi) the Property Trustee may consult with counsel of
its selection (which counsel may be counsel to the Sponsor or any of
its Affiliates, and may include any of its employees) and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon and in
accordance with such advice; and the Property Trustee shall have the
right at any time, upon prior notice to the Sponsor, to seek
instructions concerning the administration of this Declaration from any
court of competent jurisdiction;
(vii) the Property Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Declaration at the request or direction of any of the Securityholders
pursuant to this Declaration, unless such Securityholders shall have
offered to the Property Trustee reasonable security or indemnity
satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(viii) the Property Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolutions, certificate, statement, instrument,
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opinion, report, notice, request, consent, order, approval, bond, Note,
note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by Holders of record of 25% or
more of the Preferred Securities (based upon their Liquidation Amount),
but the Property Trustee may make such further inquiry or investigation
into such facts or matters as it may see fit at the expense of the
Sponsor and shall incur no liability of any kind by reason of such
inquiry or investigation;
(ix) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys or an Affiliate, and
shall not be responsible for the negligence, misconduct or bad faith
with respect to the actions or inaction of any agent or attorney
appointed with due care by it hereunder;
(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 (A) may request
instructions from the Holders of the Trust Securities, which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action, (B) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting in
accordance with such instructions; and
(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.
(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 8.04 Not Responsible for Recitals or Issuance of
Securities
The recitals contained herein and in the Trust Securities
Certificates shall not be taken as the statements of the Trustees, and the
Trustees do not assume any responsibility for their correctness. The Trustees
shall not be accountable for the use or application by the Sponsor of the
proceeds of the Notes.
Section 8.05 May Hold Securities
Except as provided in the definition of the term "Outstanding"
in Article I, any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Section 8.08 and 8.12, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
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Section 8.06 Compensation; Indemnity; Fees
The Sponsor agrees:
(a) to pay the Trustees from time to time such compensation
for all services rendered by them hereunder as the parties shall agree
from time to time in writing (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
determined by a court of competent jurisdiction to have been caused by
its own negligence or willful misconduct;
(c) to the fullest extent permitted by applicable law, to
fully indemnify and hold harmless (i) each Trustee, (ii) any Affiliate
of any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent
of the Trust or its Affiliates (referred to herein as an "Indemnified
Person") from and against any and all loss, damage, liability, tax,
penalty, expense (including legal fees and expenses) or claim of any
kind or nature whatsoever incurred by such Indemnified Person by reason
of the creation, administration, operation or termination of the Trust
or any act or omission performed or omitted by such Indemnified Person
in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Declaration, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim determined by
a court of competent jurisdiction to have been caused by such
Indemnified Person's own negligence or willful misconduct with respect
to such acts or omissions (or, in the case of the Administrative
Trustees and the Delaware Trustee, any such loss, damage or claim as
may be attributable to its, his or her gross negligence or willful
misconduct), and the Trustees' right to compensation, reimbursement for
its costs an expenses and indemnification shall survive its resignation
or removal and the termination of this Declaration; and
(d) no Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.06.
Section 8.07 Property Trustee Required; Eligibility of
Trustees
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such, shall not
be an Affiliate of the Sponsor and shall have a combined capital and surplus of
at least $50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority,
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then for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Property
Trustee with respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall be either (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
Section 8.08 Conflicting Interests; Guarantee Described
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Declaration.
(b) The Guarantee shall be deemed to be specifically described
in this Declaration for purposes of clause (i) of the first provision contained
in Section 310(b) of the Trust Indenture Act.
Section 8.09 Resignation and Removal; Appointment of Successor
(a) Subject to Sections 8.09(b) and 8.09(c), any Trustee (the
"Relevant Trustee") may be appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by
written instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of
the Holders of a majority in Liquidation Amount of the Common
Securities voting as a class.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 8.09(a) until a successor possessing the
qualifications to act as a Property Trustee under Section 8.07 (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 removed Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 8.09(a) until a successor possessing the
qualifications to act as Delaware Trustee under Section 8.07 (a "Successor
Delaware Trustee") has been appointed and has accepted such
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appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the removed Delaware Trustee.
(d) A Trustee appointed to office shall hold office until his,
her or its successor shall have been appointed or until his, her or its death,
removal, resignation, dissolution or liquidation. 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 Trust 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.
(e) The Holders of the Common Securities shall use their best
efforts promptly to appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with Section 8.09(d).
(f) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 8.09 within 60 days after delivery pursuant to this Section 8.09 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, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be.
(g) 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.
(h) The Property Trustee shall give notice of each resignation
and each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Sponsor. Each notice shall include the
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name of the successor Relevant Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
(i) Notwithstanding the foregoing or any other provision of
this Declaration, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, solely in the opinion of the Sponsor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (i) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (ii) otherwise by
the Sponsor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or the Delaware Trustee, as
the case may be, set forth in Section 8.07).
(j) The indemnity provided to a Trustee under Section 8.06
shall survive any Trustee's resignation or removal and the termination of this
Declaration.
Section 8.10 Acceptance of Appointment by Successor
(a) In case of the appointment hereunder of a successor
Trustee, such successor Trustee so appointed shall execute, acknowledge and
deliver to the Trust and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Sponsor or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and if the Property Trustee is
the resigning Trustee shall duly assign, transfer and deliver to the successor
Trustee all property and money held by such retiring Property Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Relevant Trustee, the retiring Relevant Trustee and each successor Relevant
Trustee shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee and upon the execution and delivery of
such amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee, such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such
retiring Relevant Trustee hereunder.
(c) Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in Sections 8.10(a) or 8.10(b), as the case may be.
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(d) No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 8.11 Merger, Conversion, Consolidation or Succession
to Business
Any Person into which the Property Trustee, the Delaware
Trustee or any Administrative Trustee 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 such Relevant Trustee shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 8.12 Preferential Collection of Claims Against Sponsor
or Trust
If and when the Property Trustee shall be or become a creditor
of the Sponsor or the Trust (or any other obligor upon the Notes or the Trust
Securities), the Property Trustee shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Sponsor or Trust (or any such
other obligor).
Section 8.13 Reports by Property Trustee
(a) To the extent required by the Trust Indenture Act, within
60 days after May 15 of each year commencing with May 15, 2004 the Property
Trustee shall transmit to all Securityholders in accordance with Section 10.08
and to the Sponsor, a brief report dated as of such May 15 with respect to:
(i) its eligibility under Section 8.07 or, in lieu
thereof, if to the best of its knowledge it has continued to be
eligible under said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has
complied with all of its obligations under this Declaration during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such [ ] or, if the Property
Trustee has not complied in any material respects with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its
possession as Property Trustee since the date of its last report and
any action taken by the Property Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Declaration as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.
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(c) A copy of such report shall, at the time of such
transmissions to Holders, be filed by the Property Trustee with each national
securities exchange or self-regulatory organization upon which the Trust
Securities are listed, with the Commission and with the Sponsor.
Section 8.14 Reports to the Property Trustee
The Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314(a) of the Trust Indenture Act
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act. Delivery of such reports, information and documents to the
Property 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 Sponsor's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officers' Certificates).
Section 8.15 Evidence of Compliance with Conditions Precedent
Each of the Sponsor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.16 Number of Trustees
(a) The number of Trustees shall be [four], provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.16(a), or
if the number of Trustees is increased pursuant to Section 8.16(a), a vacancy
shall occur.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust.
Section 8.17 Delegation of Power
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07(a), including any registration statement or
amendment thereof filed with the Commission, or making any other governmental
filing.
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(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number or to the Sponsor the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the Administrative
Trustees may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
Section 8.18 Appointment of Administrative Trustees
(a) The Administrative Trustees shall initially be [ ], an
individual, and [ ], an individual, and their successors shall be appointed by
the Holders of a majority in Liquidation Amount of the Common Securities. Any
Administrative Trustee may resign or be removed by the Holders of a majority in
Liquidation Amount of the Common Securities at any time. Upon any resignation or
removal, the Sponsor shall appoint a successor Administrative Trustee. If at any
time there is no Administrative Trustee, the Property Trustee or any Holder who
has been a Holder of Trust Securities for at least six months may petition any
court of competent jurisdiction for the appointment of one or more
Administrative Trustees.
(b) Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with this Section 8.18 or Section 8.09, the
Administrative Trustees in office, regardless of their number (and not
withstanding any other provision of this Agreement), shall have all the powers
granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Declaration.
(c) Notwithstanding the foregoing or any other provision of
this Declaration, if any Administrative Trustee who is a natural person dies or
becomes, in the opinion of the Holders of a majority in Liquidation Amount the
Common Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the unanimous act of the
remaining Administrative Trustees, if there were at least two of them prior to
such vacancy, and by the Sponsor, if there were not two such Administrative
Trustees immediately prior to such vacancy (with the successor being a Person
who satisfies the eligibility requirement for Administrative Trustees set forth
in Section 8.07).
Section 8.19 Administrative Trustee Meetings
Meetings of the Administrative Trustees shall be held from
time to time upon the call of any Administrative Trustee. Regular meetings of
the Administrative Trustees may be held at a time and place fixed by resolution
of the Administrative Trustees. Notice of any in-person meetings of the
Administrative Trustees shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight courier) not less
than 48 hours before such meeting. Notice of any telephonic meetings of the
Administrative Trustees or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of a Administrative
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Administrative Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that
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the meeting has not been lawfully called or convened. Unless provided otherwise
in this Declaration, any action of the Administrative Trustees may be taken at a
meeting by vote of a majority of the Administrative Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a quorum is present, or without a meeting by the unanimous written
consent of the Administrative Trustees or may be taken without a meeting and
without prior notice if a consent in writing setting forth the action so taken
is signed by Administrative Trustees having not less than the minimum number of
votes that would be necessary to authorize or take that action at a meeting at
which all Administrative Trustees entitled to vote on that action were present
and voted. A majority of the Administrative Trustees or, if there are only one
or two Administrative Trustees, all of the Administrative Trustees shall
constitute a quorum. In the event there is only one Administrative Trustee, any
and all action of such Administrative Trustee shall be evidenced by a written
consent of such Administrative Trustee.
Section 8.20 Outside Businesses
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business ventures
of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. 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 a depositary for trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE IX
TERMINATION, LIQUIDATION AND MERGER
Section 9.01 Dissolution upon Expiration Date
Unless earlier dissolved, the Trust shall automatically
dissolve on [ ] (the "Expiration Date").
Section 9.02 Early Termination
The Trust shall dissolve upon the first to occur of any of the
following events (each an "Early Termination Event"):
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(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Sponsor;
(b) receipt by the Property Trustee of written notice from the
Sponsor at any time (which notice is optional and wholly within the
discretion of the Sponsor) of its intention to dissolve the Trust and
distribute the Notes in exchange for the Trust Securities;
(c) the redemption or exchange of all of the Trust Securities;
and
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
Section 9.03 Termination
The respective obligations and responsibilities of the
Trustees and the Trust continued hereby shall terminate upon the latest to occur
of the following:
(a) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to
Section 4.02, of all amounts required to be distributed hereunder upon
the final payment of the Trust Securities;
(b) the payment of all expenses owed by the Trust;
(c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders; and
(d) the filing of a certificate of cancellation canceling the
Trust's certificate of trust with the Secretary of State of the State
of Delaware.
Section 9.04 Liquidation
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.02 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each applicable Securityholder an
aggregate principal amount of Notes equal to the aggregate Liquidation Amount of
Trust Securities held by such Holder, subject to Section 9.04(d). Notice of
liquidation shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the Liquidation
Date to each Holder of Trust Securities at such Holder's address as it appears
in the Security Register or the most recent list provided to the Property
Trustee. All notices of liquidation shall:
(i) state the Liquidation Date;
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(ii) state that, from and after the Liquidation Date,
the Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent an aggregate principal amount of Notes equal to the
aggregate Liquidation Amount of Trust Securities held by such Holder;
and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Notes, or, if Section 9.04(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order
to effect the liquidation of the Trust and distribution of the Notes to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Notes in exchange for the Outstanding
Trust Securities.
(c) Except where Section 9.02(c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency or its nominee, as the record Holder of
such Preferred Securities, will receive a registered global certificate or
certificates representing the Notes to be delivered upon such distribution,
(iii) any Preferred Securities Certificates not held by the Clearing Agency will
be deemed to represent an aggregate principal amount of Notes equal to the
aggregate Liquidation Amount of Preferred Securities held by such other Holders,
and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on such Preferred Securities until such Preferred
Securities Certificates are presented to the Security Registrar for transfer or
reissuance, (iv) certificates representing a Like Amount of Notes will be issued
to the Sponsor upon surrender of all Common Securities Certificates to the
Security Registrar for exchange, and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Notes upon surrender of Trust Securities Certificates.
(d) If, notwithstanding the other provisions of this Section
9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Notes in the manner
provided herein is determined by the Property Trustee not to be practicable, the
Trust Property shall be liquidated, and the Trust shall be dissolved, wound-up
or terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding up or other
termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus accrued
and unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding-up or
termination, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive
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Liquidation Distributions upon any such dissolution, winding-up or termination
pro rata (determined as aforesaid) with Holders of Preferred Securities, except
that, if a Note Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
Section 9.05 Mergers, Consolidations, Amalgamations or
Replacements of the Trust
The Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.05. At the request of the Sponsor, with the consent of the
Administrative Trustees and without the consent of the Property Trustee, the
Delaware Trustee or the Holders of the Preferred Securities, the Trust may merge
with or into, consolidate, amalgamate, be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Trust Securities or (b) substitutes for the Preferred Securities
other securities having substantially the same terms as the Preferred Securities
(the "Successor Securities") so long as the Successor Securities rank the same
as the Preferred Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the Sponsor expressly
appoints a trustee of such successor entity, possessing the same powers and
duties as the Property Trustee, as the holder of the Notes, (iii) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (iv)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect, (v) such successor entity has a purpose identical to that of
the Trust, (vi) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease the Sponsor has received an Opinion of Counsel to
the effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect (other than with respect to any
dilution of the Holder's interest in the new entity) and (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
neither the Trust nor such successor entity will be required to register as an
"investment company" under the 1940 Act and (vii) 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 Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
aggregate Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Trust or the successor entity to be classified as other
than a grantor trust for United States federal income tax purposes.
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ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Limitation of Rights of Securityholders
The death or incapacity of any person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate this
Declaration, nor entitle the legal representatives or heirs of such person or
any Securityholder for such person to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding-up of the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
Section 10.02 Amendment
(a) This Declaration may be amended from time to time by the
Trustees and the Sponsor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein that may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Declaration, which shall
not be inconsistent with the other provisions of this Declaration, (ii) to
modify, eliminate or add to any provisions of this Declaration to such extent as
shall be necessary to ensure that the Trust will be classified for United States
federal income tax purposes as a grantor trust at all times that any Trust
Securities are Outstanding or to ensure that the Trust will not be required to
register as an "investment company" under the 1940 Act or (iii) to maintain the
qualification of this Declaration under the Trust Indenture Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any Securityholder, and, in the case of
any of the foregoing, any amendments of this Declaration shall become effective
when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any
provision of this Declaration may be amended by the Trustees and the Sponsor
with (i) the consent of Holders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding, acting as a
single class, and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for United States federal income tax purposes or the Trust's
exemption from the status of an "investment company" under the 1940 Act,
provided, however, if any amendment or proposal that would adversely affect only
the Preferred Securities or only the Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of a majority in
Liquidation Amount of such class of Trust Securities.
(c) In addition to and notwithstanding any other provision in
this Declaration, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Declaration may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or
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(ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such payment on or after such date. Notwithstanding any other
provision herein, without the unanimous consent of the Securityholders (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
paragraph (c) of this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration,
no Trustee shall enter into or consent to any amendment to this Declaration
which would cause the Trust to fail or cease to qualify for the exemption from
the status of an "investment company" under the 1940 Act or be classified as
other than a grantor trust for United States federal income tax purposes.
(e) Notwithstanding anything in this Declaration to the
contrary, without the consent of the Sponsor, this Declaration may not be
amended in a manner which imposes any additional obligation on the Sponsor.
(f) If any amendment to this Declaration is made, the
Administrative Trustees shall promptly provide to the Sponsor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Declaration which affects
its own rights, duties or immunities under this Declaration. The Property
Trustee shall be provided with an Opinion of Counsel and an Officers'
Certificate stating that any amendment to this Declaration is in compliance with
this Declaration and does not violate Section 10.02(d) hereof.
Section 10.03 Separability
In case any provision in this Declaration or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 10.04 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 THE PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE]; PROVIDED, HOWEVER, THAT THERE
SHALL NOT BE APPLICABLE TO THE PARTIES HEREUNDER OR THIS DECLARATION ANY
PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE PERTAINING
TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS
HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE
ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS
TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE
NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE
ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR
OTHER SUMS PAYABLE TO TRUSTEES,
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OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF RECEIPTS AND
EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR LIMITATIONS ON THE
PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS
RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST
ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF
RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE
INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF
THE TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS DECLARATION. SECTIONS
3540 AND 3561 OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.
Section 10.05 Payments Due on Non-Business Day
If the date fixed for any payment on any Trust Security shall
be a day which is not a Business Day, then such payment need not be made on such
date but may be made on the next succeeding day which is a Business Day, with
the same force and effect as though made on the date fixed for such payment, and
no interest shall accrue thereon for the period after such date.
Section 10.06 Successors
This Declaration shall be binding upon and shall inure to the
benefit of any successor to the Sponsor, the Trust or the Relevant Trustee,
including any successor by operation of law. Except in connection with a
consolidation, merger or sale involving the Sponsor that is permitted under
Article 8 of the Indenture and pursuant to which the assignee agrees in writing
to perform the Sponsor's obligations hereunder, the Sponsor shall not assign its
obligations hereunder.
Section 10.07 Headings
The Article and Section headings are for convenience only and
shall not affect the construction of this Declaration.
Section 10.08 Reports, Notices and Demands
(a) Any report, notice, demand or other communications which
by any provision of this Declaration is required or permitted to be given or
served to or upon any Holder of Preferred Securities or the Sponsor may be given
or served in writing by deposit thereof, first-class postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Holder of Preferred Securities, to such Holder
as such Holder's name and address may appear on the Security Register; and (b)
in the case of the Sponsor, to Delphi Corporation, 5725 Delphi Drive, Troy,
Michigan 48098; Attention: Secretary. Any notice to Preferred Securityholders
shall also be given to such Owners as have, within two years preceding the
giving of such notice, filed their names and addresses with the Property Trustee
for that purpose. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given, or made, for all
purposes, upon hand delivery, mailing or transmission.
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(b) Any notice, demand or other communication which by any
provision of this Declaration is required or permitted to be given or served to
or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing (which may be by facsimile
transmission) addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee, to Bank One Trust Company,
N.A., 1111 Polaris Parkway, Mail Suite OH1-0181, Columbus, Ohio 43240-0181,
Attention: Global Corporate Trust Services, (b) with respect to the Delaware
Trustee, to Bank One Delaware, Inc., Three Christina Centre, 201 Walnut Street,
Wilmington, Delaware 19801, Attention: [ ], with a copy of any such notice to
the Property Trustee at its address above, and (c) with respect to the
Administrative Trustees, to them at the address for notices to the Sponsor,
marked "Attention: Secretary." Such notice, demand or other communication to or
upon the Trust or the Property Trustee shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the Trust or the
Property Trustee.
Section 10.09 Trust Indenture Act; Conflict with Trust
Indenture Act
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required or deemed to be part of this Declaration and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required or deemed to be included in this
Declaration by any of the provisions of the Trust Indenture Act, such required
or deemed provision shall control. If any provision of this Declaration modifies
or excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Declaration as
so modified or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
Section 10.10 Acceptance of Terms of Declaration, Guarantee
and Indenture
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND THE
PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS TO THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
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Section 10.11 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 parties hereto have caused this
Declaration to be duly executed as of the day and year first above written.
DELPHI CORPORATION,
as Sponsor
By:
------------------------------------------
Name:
----------------------------------
Title:
----------------------------------
BANK ONE TRUST COMPANY, N.A.,
as Property Trustee
By:
-------------------------------------------
Name:
----------------------------------
Title:
----------------------------------
BANK ONE DELAWARE, INC., as Delaware Trustee
By:
-------------------------------------------
Name:
----------------------------------
Title:
----------------------------------
-----------------------------------------------
[ ], as Administrative Trustee
-----------------------------------------------
[ ], as Administrative Trustee
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EXHIBIT A
FORM OF COMMON SECURITIES CERTIFICATE
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED UNDER
APPLICABLE LAW AND THE AMENDED AND RESTATED DECLARATION OF TRUST
Certificate Number Number of Common Securities
____________ ____________
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
DELPHI TRUST [I] [II] [III] [IV]
COMMON SECURITIES
(LIQUIDATION AMOUNT $[ ] PER COMMON SECURITY)
Delphi Trust [I] [II] [III] [IV], a statutory trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Delphi Corporation (the "Holder") is the registered owner of ___________ common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust (the "Common Securities"). In accordance with Section 5.10
of the Declaration (as defined below), to the fullest extent permitted by law,
the Common Securities are not transferable and any attempted transfer hereof
shall be void, other than a transfer to certain successors that are permitted by
the Indenture to succeed to the Holder's ownership of the Common Securities. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of
Trust of the Trust dated as of [ ], as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of the Common
Securities as set forth therein. Capitalized terms used herein but not defined
herein shall have the meaning given them in the Declaration. The Trust will
furnish a copy of the Declaration to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance the Holder agrees to treat, for United States
federal income tax purposes, the Notes as indebtedness of the Sponsor.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ___ day of __________, 2003.
DELPHI TRUST [I] [II] [III] [IV]
By: _________________________________
Name: ___________________________
As Administrative Trustee
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EXHIBIT B
FORM OF PREFERRED SECURITIES CERTIFICATE
[FORM OF FACE OF PREFERRED SECURITIES CERTIFICATE]
[If this Preferred Securities Certificate is a Global Certificate, insert: THIS
PREFERRED SECURITIES CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "CLEARING AGENCY") OR A NOMINEE OF THE CLEARING
AGENCY. THIS PREFERRED SECURITIES CERTIFICATE IS EXCHANGEABLE FOR ONE OR MORE
PREFERRED SECURITIES CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE DECLARATION AND NO TRANSFER OF THIS PREFERRED SECURITIES CERTIFICATE
(OTHER THAN A TRANSFER OF THIS PREFERRED SECURITIES CERTIFICATE 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 PREFERRED SECURITIES CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE CLEARING AGENCY TO DELPHI TRUST [I] [II] [III] [IV] OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED
SECURITIES CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE CLEARING
AGENCY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE CLEARING AGENCY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
Certificate Number Number of Preferred Securities
___________ ___________
CUSIP No. _____
$___________
Certificate Evidencing Preferred Securities
of
Delphi Trust [I] [II] [III] [IV]
[ ]% Trust Preferred Securities
(liquidation amount $[ ] per Preferred Security)
Delphi Trust [I] [II] [III] [IV], a statutory trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of ___________ preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the Delphi Trust [I] [II] [III] [IV] [ ]%
Trust Preferred Securities (liquidation amount $[ ] per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.4 of the Declaration (as defined below). The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities are set forth in, and this certificate and the
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of
Trust of the Trust dated as of [ ], as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of Preferred
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Delphi Corporation, a Delaware corporation,
and Bank One Trust Company, N.A., as Guarantee Trustee, dated as of [ ] (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Declaration and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Notes as indebtedness of the Sponsor.
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IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ____ day of ________ 2003.
DELPHI TRUST [I] [II] [III] [IV]
By: _________________________________
Name: __________________________
As Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated: __________________ Bank One Trust Company, N.A.,
as Property Trustee
By: ____________________________
Authorized Signatory
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[FORM OF REVERSE OF PREFERRED SECURITIES CERTIFICATE]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Securities Certificate to:
______________________________________________
______________________________________________
______________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________
______________________________________________
______________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________
______________________________________________
______________________________________________
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ___________________
Signature: ____________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Signature Guarantee: ______________________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Security Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Security
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
-4-
[If this Preferred Securities Certificate is a Global Certificate, insert:
SCHEDULE A
The initial liquidation amount of this Global Certificate
shall be $__________. The following increases or decreases in the liquidation
amount of this Global Certificate have been made:
Amount of
increase in
Liquidation Signature of
Amount of this Amount of Liquidation authorized
Global Certificate decrease in Amount of this officer of
including upon Liquidation Global Certificate Trustee or
exercise of over-- Amount of this following such Securities
Date Made allotment option Global Certificate decrease or increase Custodian
- --------- ---------------- ------------------ -------------------- ---------
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