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EXHIBIT 4.20
AMENDED AND RESTATED DECLARATION OF TRUST
among
CITADEL COMMUNICATIONS CORPORATION
as Depositor
THE BANK OF NEW YORK,
as Property Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
and the several Holders of the Trust Securities
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Dated as of [ ], 1999
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CCC CAPITAL TRUST I
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TABLE OF CONTENTS
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ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions.........................................................................................1
ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name...............................................................................................12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business........................................13
SECTION 2.3. Initial Contribution of Trust Property; Organizational Expenses....................................13
SECTION 2.4. Issuance of the Preferred Securities...............................................................13
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures.........................................................................13
SECTION 2.6. Continuation of Trust..............................................................................14
SECTION 2.7. Authorization to Enter into Certain Transactions...................................................14
SECTION 2.8. Assets of Trust....................................................................................18
SECTION 2.9. Title to Trust Property............................................................................18
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account....................................................................................18
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions......................................................................................19
SECTION 4.2. Redemption.........................................................................................20
SECTION 4.3. Subordination of Common Securities.................................................................22
SECTION 4.4. Payment Procedures.................................................................................23
SECTION 4.5. Withholding Tax....................................................................................23
SECTION 4.6. Tax Returns and Reports............................................................................24
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer Trust.................................................24
SECTION 4.8. Payments Under Indenture or Pursuant to Direct Actions.............................................24
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SECTION 4.9. Liability of the Holder of Common Securities......................................................24
SECTION 4.10. Other Purchases of Preferred Securities...........................................................24
ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.................................................................................25
SECTION 5.2. The Securities Certificates.......................................................................25
SECTION 5.3. Execution and Delivery of Securities Certificates.................................................26
SECTION 5.4. Book-Entry Preferred Securities ..................................................................26
SECTION 5.5. Registration of Transfer and Exchange of Preferred Securities Certificates........................28
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities Certificates......................................29
SECTION 5.7. Persons Deemed Holders............................................................................30
SECTION 5.8. Access to List of Holders' Names and Addresses....................................................30
SECTION 5.9. Maintenance of Office or Agency...................................................................30
SECTION 5.10. Appointment of Paying Agents......................................................................30
SECTION 5.11. Ownership of Common Securities by Depositor.......................................................31
SECTION 5.12. Notices to Clearing Agency........................................................................31
SECTION 5.13. Rights of Holders; Waivers of Past Defaults.......................................................31
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.......................................................................33
SECTION 6.2. Notice of Meetings.................................................................................34
SECTION 6.3. Meetings of Holders of the Preferred Securities....................................................35
SECTION 6.4. Voting Rights......................................................................................35
SECTION 6.5. Proxies, Etc.......................................................................................35
SECTION 6.6. Holder Action by Written Consent...................................................................35
SECTION 6.7. Record Date for Voting and Other Purposes..........................................................36
SECTION 6.8. Acts of Holders....................................................................................36
SECTION 6.9. Inspection of Records..............................................................................37
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ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee..................................................................37
SECTION 7.2. Representations and Warranties of Depositor........................................................38
ARTICLE VIII.
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities...............................................................39
SECTION 8.2. Certain Notices...................................................................................42
SECTION 8.3. Certain Rights of Property Trustee................................................................42
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities............................................44
SECTION 8.5. May Hold Securities...............................................................................44
SECTION 8.6. Compensation; Indemnity; Fees.....................................................................44
SECTION 8.7. Corporate Property Trustee Required; Eligibility of Issuer Trustees
and Administrators....................................................................46
SECTION 8.8. Conflicting Interests.............................................................................46
SECTION 8.9. Co-Trustees and Separate Trustee..................................................................47
SECTION 8.10. Resignation and Removal; Appointment of Successor.................................................48
SECTION 8.11. Acceptance of Appointment by Successor............................................................49
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business.......................................50
SECTION 8.13. Preferential Collection of Claims Against Depositor or Issuer Trust...............................50
SECTION 8.14. Property Trustee May File Proofs of Claim.........................................................50
SECTION 8.15. Reports by Property Trustee.......................................................................51
SECTION 8.16. Reports to the Property Trustee...................................................................52
SECTION 8.17. Evidence of Compliance with Conditions Precedent..................................................52
SECTION 8.18. Number of Issuer Trustees.........................................................................52
SECTION 8.19. Delegation of Power...............................................................................52
SECTION 8.20. Appointment of Administrators.....................................................................53
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date..................................................................53
SECTION 9.2. Early Dissolution.................................................................................53
SECTION 9.3. Termination.......................................................................................54
SECTION 9.4. Liquidation.......................................................................................54
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SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust.............................55
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders..................................................................57
SECTION 10.2. Agreed Tax Treatment of Issuer Trust and Trust Securities........................................57
SECTION 10.3. Amendment........................................................................................57
SECTION 10.4. Separability.....................................................................................59
SECTION 10.5. Governing Law....................................................................................59
SECTION 10.6. Payments Due on Non-Business Day.................................................................59
SECTION 10.7. Successors.......................................................................................60
SECTION 10.8. Headings.........................................................................................60
SECTION 10.9. Reports, Notices and Demands.....................................................................60
SECTION 10.10. Agreement Not to Petition........................................................................61
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act...........................................61
SECTION 10.12. Acceptance of Terms of Declaration of Trust, Guarantee Agreement
and Indenture.........................................................................61
Exhibit A Certificate of Trust of CCC Capital Trust I
Exhibit B Form of Letter of Representations
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Expense Agreement
Exhibit E Form of Preferred Securities Certificate
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AMENDED AND RESTATED DECLARATION OF TRUST, dated as of [ ],
1999, among (i) Citadel Communications Corporation, a Nevada corporation
(including any successors or assigns, the "Depositor"), (ii) The Bank of New
York, a New York banking corporation, as property trustee (in such capacity, the
"Property Trustee"), (iii) The Bank of New York (Delaware), a Delaware banking
corporation, as Delaware trustee (in such capacity, the "Delaware Trustee") (the
Property Trustee and the Delaware Trustee being referred to collectively as the
"Issuer Trustees"), and (iv) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee, and the Delaware
Trustee have heretofore duly created a business trust pursuant to the Delaware
Business Trust Act by entering into a Declaration of Trust, dated as of December
, 1999 (the "Original Declaration of Trust), and by the execution and filing by
the Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on December , 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Issuer Trustees desire to
amend and restate the Original Declaration of Trust in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Issuer Trust to the Depositor, (ii) the issuance and sale of
the Preferred Securities by the Issuer Trust pursuant to the Underwriting
Agreement, (iii) the acquisition by the Issuer Trust from the Depositor or
Subsidiary of all of the right, title and interest in the Debentures, and (iv)
the appointment of the Administrators;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each party, for the
benefit of the other parties and for the benefit of the Holders, hereby amends
and restates the Original Declaration of Trust in its entirety and agrees as
follows:
ARTICLE I.
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Declaration
of Trust, 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) The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
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(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(e) Unless the context otherwise requires, any reference to an
"Article", a "Section" or an "Exhibit" refers to an Article, a Section
or an Exhibit, as the case may be, of or to this Declaration of Trust;
and
(f) The words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Declaration of Trust as a
whole and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of Additional
Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of
Debentures for such period.
"Additional Sums" has the meaning specified in Section 10.6 of
the Indenture.
"Additional Taxes" has the meaning specified in Section 1.1 of
the Indenture.
"Administrators" means each Person appointed in accordance
with Section 8.20 solely in such Person's capacity as Administrator of the
Issuer Trust and not in such Person's individual capacity, or any successor
Administrator 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. 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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Book-Entry Preferred Security, the rules and procedures
of the Clearing Agency for such Book-Entry Preferred Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
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respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of
its property or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of 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.
"Bankruptcy Laws" has the meaning specified in Section 10.10.
"Board of Directors" means the board of directors of the
Depositor or the Executive Committee of the board of directors of the Depositor
(or any other committee of the board of directors of the Depositor performing
similar functions) or a committee designated by the board of directors of the
Depositor (or any such committee), comprised of two or more members of the board
of directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or officers of the Depositor to
which authority to act on behalf of the Board of Directors has been delegated
and to be in full force and effect on the date of such certification, and
delivered to the Issuer Trustees.
"Book-Entry Preferred Security" means a Preferred Security,
the ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.4.
"Business Day" means a day other than (a) a Saturday or
Sunday, (b) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or (c) a day
on which the Property Trustee's Corporate Trust Office or the Corporate Trust
Office of the Debenture Trustee is closed for business.
"Cedel" means Cedel Bank, societe anonyme (or any successor
securities clearing agency).
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"Certificate Depository Agreement" means the agreement among
the Issuer Trust, the Depositor and DTC, as the initial Clearing Agency, dated
as of the Closing Date, substantially in the form attached as Exhibit B, as the
same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. DTC 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 Time of Delivery, which date is also
the date of execution and delivery of this Declaration of Trust.
"Code" means the United States Internal Revenue Code of 1986,
as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Securities and Exchange
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 C.
"Common Security" means an undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $__ and having
the rights provided therefor in this Declaration of Trust, including the right
to receive Distributions and a Liquidation Distribution to the extent provided
herein.
"Common Securities Default" has the meaning specified in
Section 4.3(b).
"Corporate Trust Office" means (i) when used with respect to
the Property Trustee, the principal corporate trust office of the Property
Trustee located in the City of New York, which at the time of the execution of
this Declaration of Trust is located at 101 Barclay Street, Floor 21 West, New
York, New York 10286; Attention: Corporate Trust Administration.
"Debenture Issuer" means the issuer of Debentures, which could
be the Depositor or the Subsidiary.
"Debenture Event of Default" means any "Event of Default"
specified in Section 5.1 of the Indenture.
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"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption of
such Debentures under the Indenture, including any date fixed for redemption
pursuant to the exercise by the Debenture Issuer of its optional right to redeem
the Debentures prior to their stated maturity [either (i) in whole or in part
after a certain date specified in the applicable prospectus supplement or (ii)]
in whole but not in part after the occurrence of a Tax Event or an Investment
Company Act Event.
"Debenture 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 any successor Trustee appointed as provided in the Indenture.
"Debentures" means either the Depositor's [ ]% Junior
Subordinated Debentures issued pursuant to the Indenture or the Subsidiary's [
]% Junior Subordinated Debentures issued pursuant to the Indenture, as the case
may be.
"Declaration of Trust" means this Amended and Restated
Declaration of Trust, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including (i) all exhibits,
and (ii) for all purposes of this Declaration of Trust and any such
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Declaration of Trust and any
such modification, amendment or supplement, respectively.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (i) Preferred Securities Certificates issued
as Global Preferred Securities as provided in Section 5.2 or 5.4, and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.2, 5.4 or 5.5.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., or any successor statute
thereto, in each case as amended from time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Declaration of Trust, solely in its
capacity as Delaware Trustee of the Issuer Trust and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Distribution Date" has the meaning specified in Section
4.1(a).
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"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"DTC" means The Depository Trust and Clearing Company or any
successor thereto.
"Early Dissolution Event" has the meaning specified in Section
9.2.
"ERISA" means the Employee Retirement Income Security Act of
1974, and any successor statute thereto, in each case as amended from time to
time.
"Euroclear" means the Euroclear Clearance System (or any
successor securities clearing agency), as operated by Morgan Guaranty Trust
Company of New York, Brussels office.
"European Preferred Securities" means Preferred Securities
that are sold to investors in Europe and settled through Euroclear and Cedel.
"Event of Default" means any one of the following events
(whatever the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
(c) default by the Issuer Trust in the payment of any
Redemption Price of any Trust Security when it becomes due and payable;
or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in this
Declaration of Trust (other than those specified in clause (b) or (c)
above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the Issuer Trustees and to the Depositor by the Holders of at least 25%
in aggregate Liquidation Amount of the Outstanding Preferred Securities
a written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the
Property Trustee if a successor Property Trustee has not been appointed
within 90 days thereof.
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"Exchange Act" means the Securities Exchange Act of 1934, and
any successor statute thereto, in each case as amended from time to time.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities, dated as of the Closing Date, between the Depositor, in its
capacity as holder of the Common Securities, and the Issuer Trust, substantially
in the form attached as Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Extension Period" has the meaning specified in Section 3.12.
of the Indenture.
"Global Preferred Security" means a Preferred Securities
Certificate evidencing ownership of Book-Entry Preferred Securities.
"Guarantee Agreement" means the Guarantee Agreement executed
and delivered by the Depositor and The Bank of New York, as guarantee trustee,
contemporaneously with the execution and delivery of this Declaration of Trust,
for the benefit of the holders of the Preferred Securities, as amended from time
to time.
"Holder" means a Person in whose name a Trust Security or
Trust Securities are registered in the Securities Register; any such Person
shall be a beneficial owner within the meaning of the Delaware Business Trust
Act.
"Indenture" means either the Junior Subordinated Indenture,
dated as of [ ], between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time, under which the Depositor's
Debentures are issued or the Junior Subordinated Indenture, dated as of [ ],
between the Subsidiary and the Debenture Trustee, as trustee, as amended or
supplemented from time to time, under which the Subsidiary's Debentures are
issued.
"Investment Company Act" means the Investment Company Act of
1940, or any successor statute thereto, in each case as amended from time to
time.
"Investment Company Act Event" means the receipt by the Issuer
Trust of an Opinion of Counsel experienced in such matters to the effect that,
as a result of the occurrence of a change in law or regulation or a written
change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective, as the case may
be, on or after the date of the issuance of the Preferred Securities.
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"Issuer Trust" means the Delaware business trust known as "CCC
Capital Trust I" which was created on December 6, 1999 under the Delaware
Business Trust Act pursuant to the Original Declaration of Trust and the filing
of the Certificate of Trust, and continued pursuant to this Declaration of
Trust.
"Issuer Trustees" has the meaning specified in the preamble to
this Declaration of Trust.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of any
Trust Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in accordance
with the Indenture, the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, (b) with respect to a distribution of Debentures
to Holders of Trust Securities in connection with a dissolution or liquidation
of the Issuer Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Debentures
are distributed, and (c) with respect to any distribution of Additional Amounts
to Holders of Trust Securities, Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities in respect of which such
distribution is made.
"Liquidation Amount" means the stated amount of $__ per Trust
Security.
"Liquidation Date" means the date of dissolution of the Issuer
Trust pursuant to Sections 9.1 or 9.2.
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities"
or "Majority in Liquidation Amount of the Common Securities" means, except as
provided by the Trust Indenture Act, Preferred Securities or Common Securities,
as the case may be, representing more than 50% of the aggregate Liquidation
Amount of all then Outstanding Preferred Securities or Common Securities, as the
case may be.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Depositor, and delivered to the
Issuer Trustees. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration of Trust shall
include:
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(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in rendering
the Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Depositor or any Affiliate of the
Depositor.
"Original Declaration of Trust" has the meaning specified in
the recitals to this Declaration of Trust.
"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 of Trust, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee 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; provided that, if such Trust Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Declaration of Trust; and
(c) Trust Securities that have been paid or in exchange for or
in lieu of which other Trust Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.6 and 5.11;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Issuer Trustee, any
Administrator or any Affiliate of the Depositor, any Issuer Trustee or any
Administrator shall be disregarded and deemed not to be Outstanding, except that
(a) in determining whether any Issuer Trustee or any Administrator shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that a Responsible Officer
of such Issuer Trustee or such Administrator, as the case
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may be, 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 Preferred
Securities are owned by the Depositor, one or more of the Issuer Trustees, one
or more of the Administrators and/or any such Affiliate. Preferred Securities so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrators the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of
Book-Entry 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 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee in its trust
department for the benefit of the Holders in which all amounts paid in respect
of the Debentures will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Holders in accordance with Sections 4.1
and 4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, company, limited liability company, trust, unincorporated association,
or government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Preferred Security" means an undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $__ and having
the rights provided therefor in this Declaration of Trust, including the right
to receive Distributions and a Liquidation Distribution to the extent provided
herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form attached
as Exhibit E.
"Property Trustee" means the Person identified as the
"Property Trustee" in the preamble to this Declaration of Trust, solely in its
capacity as Property Trustee of the Issuer Trust and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this
Declaration of Trust; provided that each
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Debenture Redemption Date and the stated maturity of the Debentures shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security,
the Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer", when used with respect to the Property
Trustee or Issuer Trustee, means any officer assigned to the Corporate Trust
Office, including any vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
this Declaration of Trust, and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, and any
successor statute thereto, in each case as amended from time to time.
"Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Subsidiary" means Citadel Broadcasting Company, a Nevada
corporation, all of the outstanding capital stock of which is owned by the
Depositor.
"Successor Preferred Securities" of any particular Preferred
Securities Certificate means every Preferred Securities Certificate issued
after, and evidencing all or a portion of the same beneficial interest in the
Issuer Trust as that evidenced by, such particular Preferred Securities
Certificate; and, for the purposes of this definition, any Preferred Securities
Certificate executed and delivered under Section 5.6 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Preferred Securities Certificate shall
be deemed to evidence the same beneficial interest in the Issuer Trust as the
mutilated, destroyed, lost or stolen Preferred Securities Certificate.
"Tax Event" means the receipt by the Issuer Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of (a) any amendment to or change (including any announced prospective change)
in the laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or (b) any judicial decision
or any official administrative pronouncement (including any private letter
ruling,
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technical advice memorandum or field service advice) or regulatory procedure (an
"Administrative Action"), regardless of whether such judicial decision or
Administrative Action is issued to or in connection with a proceeding involving
the Corporation or the Issuer Trust and whether or not subject to review or
appeal, which amendment, change, Administrative Action or decision is enacted,
promulgated or announced, in each case, on or after the date hereof, there is
more than an insubstantial risk that (i) the Issuer Trust is, or will be within
90 days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Debentures, (ii) interest
payable by the Debenture Issuer or original issue discount accruing on the
Debentures is not, or within 90 days of the date of such opinion, will not be,
deductible by the Debenture Issuer, in whole or in part, for United States
federal income tax purposes, or (iii) the Issuer Trust is, or will be within 90
days of the date of such opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Time of Delivery" has the meaning specified in the
Underwriting Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that if the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Payment Account, and (c) all proceeds and rights in
respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the trusts of this
Declaration of Trust.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Pricing Agreement, dated as
of [ ], 1999, among the Issuer Trust, the Depositor and the Underwriters named
therein, as the same may be amended from time to time and includes the
Underwriting Agreement incorporated therein by reference.
"Vice President," when used with respect to the Depositor,
means any duly appointed vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
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ARTICLE II.
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name. The trust continued hereby shall be known
as "CCC Capital Trust I", as such name may be modified from time to time by the
Administrators following written notice to the Holders of Trust Securities and
the Issuer Trustees, in which name the Administrators and the Trustees may
conduct the business of the Issuer Trust, make and execute contracts and other
instruments on behalf of the Issuer Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business. The address of the Delaware Trustee in the State of Delaware is The
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711; Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Holders, the Depositor, the Property Trustee and the Administrators. The
principal executive office of the Issuer Trust is ______________________,
Attention: _________.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges receipt from the
Depositor in connection with the Original Declaration of Trust of the sum of
$10, which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Issuer Trust as they arise or shall, upon request
of any Issuer Trustee, promptly reimburse such Issuer Trustee for any such
expenses paid by such Issuer Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. On [ ] the
Depositor, both on its own behalf and on behalf of the Issuer Trust pursuant to
the Original Declaration of Trust, executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Declaration
of Trust, an Administrator, on behalf of the Issuer Trust, shall manually or by
facsimile signature execute in accordance with Sections 5.3 and 8.9(a) and the
Property Trustee shall hold such Preferred Securities Certificates [as nominee
for Cede & Co.], registered in the names requested by the underwriters,
evidencing an aggregate of [ ] Preferred Securities having an aggregate
Liquidation Amount of $[ ], against receipt of the aggregate purchase price of
such Preferred Securities of $[ ] by the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Debentures. Contemporaneously with the execution and delivery of
this Declaration of Trust, an Administrator, on behalf of the Issuer Trust,
shall execute in accordance with Sections 5.2 and 5.3 and the Property Trustee
shall deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, evidencing an aggregate of [ ] Common Securities having
an aggregate Liquidation Amount of $[ ], against receipt of the aggregate
purchase price of such Common Securities of $[ ], to the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Issuer Trust,
shall subscribe for and purchase from the Depositor or Subsidiary Debentures,
registered in the name of the Property Trustee, not in its individual capacity
but solely as Property Trustee, on behalf of the Issuer Trust and having an
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aggregate principal amount equal to $[ ], and, in satisfaction of the purchase
price for such Debentures, the Property Trustee, on behalf of the Issuer Trust,
shall deliver to the Debenture Issuer the sum of $[ ] (being the sum of the
amounts delivered to the Property Trustee pursuant to (i) the second sentence of
Section 2.4, and (ii) the first sentence of this Section 2.5).
SECTION 2.6. Continuation of Trust. The exclusive purposes and
functions of the Issuer Trust are (a) to issue and sell Trust Securities and use
the proceeds from such sale to acquire the Debentures, and (b) to engage in only
those activities necessary, or incidental thereto. The Property Trustee hereby
declares that it will hold the Trust Property upon and subject to the conditions
set forth herein for the benefit of the Issuer Trust and the Holders. The
Administrators shall have only those ministerial duties set forth herein with
respect to accomplishing the purposes of the Issuer Trust and shall not be
trustees or, to the fullest extent permitted by law, fiduciaries with respect to
the Issuer Trust or the Holders. The Property Trustee shall have the right and
power to perform those duties assigned to the Administrators. 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 Administrators set forth herein. The Delaware Trustee shall be one of the
trustees of the Issuer Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act and for taking
such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct the affairs of the
Issuer Trust in accordance with the terms of this Declaration of Trust. Subject
to the limitations set forth in paragraph (b) of this Section, and in accordance
with the following provisions (i) and (ii), the Issuer Trustees and the
Administrators shall have the authority to enter into all transactions and
agreements determined by the Issuer Trustees or the Administrators to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Issuer Trustees or the Administrators, as the case may be, under this
Declaration of Trust, and to perform all acts in furtherance thereof, including
the following:
(i) Each Administrator shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Issuer Trust to enter into, and to
execute, deliver and perform on behalf of the Issuer Trust,
the Expense Agreement and the Certificate Depository Agreement
and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Issuer Trust;
(C) assisting in the registration of the Preferred
Securities under the Securities Act, and under applicable
state securities or blue sky laws and the
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qualification of this Declaration of Trust as a trust
indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor, with the registration of the
Preferred Securities under the Exchange Act, and with the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(E) assisting in the sending of notices (other than
notices of default) and other information regarding the Trust
Securities and the Debentures to the Holders in accordance
with this Declaration of Trust;
(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance
with this Declaration of Trust (which consent shall not be
unreasonably withheld);
(G) execution of the Trust Securities on behalf of
the Trust in accordance with this Declaration of Trust;
(H) execution and delivery of closing certificates,
if any, pursuant to the Underwriting Agreement and application
for a taxpayer identification number for the Issuer Trust;
(I) unless otherwise determined by the Property
Trustee or Holders of at least a Majority in Liquidation
Amount of the Preferred Securities or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to
execute on behalf of the Issuer Trust (either acting alone or
together with any or all of the Administrators) any documents
that the Administrators have the power to execute pursuant to
this Declaration of Trust; and
(J) the taking of any action incidental to the
foregoing as the Issuer Trustees may from time to time
determine is necessary or advisable to give effect to the
terms of this Declaration of Trust.
(ii) The Property Trustee shall have the power, duty and
authority to act on behalf of the Issuer Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
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(C) the collection of interest, principal and any
other payments made in respect of the Debentures and the
holding of such amounts in the Payment Account;
(D) the distribution through the Paying Agent of
amounts distributable to the Holders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Debentures
to the Holders in accordance with this Declaration of Trust;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of
Trust, the winding up of the affairs of and liquidation of the
Issuer Trust and the preparation of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c), (d) or (e) of the definition of such term
if such Event of Default is by or with respect to the Property
Trustee) the taking of any action incidental to the foregoing
as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this
Declaration of Trust and protect and conserve the Trust
Property for the benefit of the Holders (without consideration
of the effect of any such action on any particular Holder);
and
(J) any of the duties, liabilities, powers or the
authority of the Administrators set forth in Section
2.7(a)(i)(E), (F) and (J) herein; and in the event of a
conflict between the action of the Administrators and the
action of the Property Trustee, the action of the Property
Trustee shall prevail.
(b) So long as this Declaration of Trust remains in effect,
the Issuer Trust (or the Issuer Trustees or Administrators acting on behalf of
the Issuer Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In particular,
neither the Issuer Trustees nor the Administrators, acting on behalf of the
Issuer Trust, shall (i) acquire any investments or engage in any activities not
authorized by this Declaration of Trust, (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein,
(iii) take any action that would reasonably be expected to cause the Issuer
Trust to become taxable as a corporation or classified as other than a grantor
trust for United States
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federal income tax purposes, (iv) take or consent to any action that would cause
the Debentures to be treated as other than indebtedness of the Debenture Issuer
for United States federal income tax purposes, (v) incur any indebtedness for
borrowed money or issue any other debt, or (vi) take or consent to any action
that would result in the placement of a Lien on any of the Trust Property. The
Property Trustee shall, at the expense of the Issuer Trust or the Holders 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 Issuer Trust or the Holders in
their capacity as Holders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor and Administrators shall have the right and
responsibility to assist the Issuer Trust with respect to, or effect on behalf
of the Issuer Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Declaration of Trust are
hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the
Preferred Securities, including any amendments thereto and the taking
of any action necessary or desirable to sell the Preferred Securities
in a transaction or a series of transactions pursuant thereto;
(ii) the determination of the States or other jurisdictions,
if any, in which to take appropriate action to qualify or register for
sale all or part of the Preferred Securities and the determination of
any and all such acts, other than actions that must be taken by or on
behalf of the Issuer Trust, and the advice to the Issuer Trust of
actions they must take on behalf of the Issuer Trust, and the
preparation for execution and filing of any documents to be executed
and filed by the Issuer Trust or on behalf of the Issuer Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States in connection with the sale of the
Preferred Securities;
(iii) the preparation for filing by the Issuer Trust and
execution on behalf of the Issuer Trust of any application to the New
York Stock Exchange or any other national stock exchange or the NASDAQ
National Market for listing upon notice of issuance of any Preferred
Securities;
(iv) the preparation for filing by the Issuer Trust with the
Commission and the execution on behalf of the Issuer Trust of any
registration statement on Form 8-A relating to Preferred Securities
under Section 12(b) or 12(g) of the Exchange Act, including any
amendments thereto;
(v) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of the
Preferred Securities; and
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(vi) the taking of any other actions necessary or desirable to
carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Issuer Trustees are authorized and directed to conduct
the affairs of the Issuer Trust and to operate the Issuer Trust so that the
Issuer Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act, and will not be taxable as a
corporation or classified as other than a grantor trust for United States
federal income tax purposes and so that the Debentures will be treated as
indebtedness of the Debenture Issuer for United States federal income tax
purposes. In this connection, each Administrator, the Property Trustee and the
Holders of at least a Majority in Liquidation Amount of the Common Securities
are authorized to take any action, in the Opinion of Counsel not inconsistent
with applicable law, the Certificate of Trust or this Declaration of Trust, that
such Administrator, the Property Trustee or Holders of Common Securities
determine in their discretion to be necessary or desirable for such purposes, as
long as such action does not adversely affect in any material respect the
interests of the Holders of the Outstanding Preferred Securities. [In no event
shall the Administrator take any action pursuant to the preceding sentence or
any other provision herein that would constitute discretionary control over the
assets of the Trust for purposes of Section 3(21) of ERISA.] In no event shall
the Administrators or the Issuer Trustees be liable to the Issuer Trust or the
Holders for any failure to comply with this section that results from a change
in law or regulation or in the interpretation thereof.
SECTION 2.8. Assets of Trust. The assets of the Issuer Trust
shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee in trust for
the benefit of the Issuer Trust and the Holders in accordance with this
Declaration of Trust.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account. (a) On or prior to the Closing
Date, the Property Trustee shall establish the Payment Account. The Property
Trustee and its agents shall have exclusive control and sole right of withdrawal
with respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Declaration of
Trust. All monies and other property deposited or held from time to time in the
Payment Account shall be held by the Property Trustee in the Payment Account for
the exclusive benefit of the Holders and for distribution as herein provided,
including (and subject to) any priority of payments provided for herein.
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(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 Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions. (a) The Trust Securities represent
undivided beneficial interests in the Trust Property, and Distributions
(including of Additional Amounts) will be made on the Trust Securities at the
rate and on the dates that payments of interest (including any Additional
Interest, as defined in the Indenture) are made on the Debentures.
Accordingly:
(i) Distributions on the Trust Securities shall be cumulative,
and shall accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accumulate from [ ], 1999, and, except as provided in clause (ii)
below, shall be payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year, commencing on [ ], 2000. If
any date on which a Distribution is otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date
on which such payment was originally payable (each date on which
distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(ii) In the event (and to the extent) of an Extension Period,
quarterly Distributions on the Preferred Securities shall continue to
accumulate but shall be deferred. Any Distributions that would
otherwise become due and payable during such deferral will not become
due and payable until the day after the period ends.
(iii) Distributions shall accumulate in respect of the
Preferred Securities at a rate of [ ]% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions payable for
any period less than a full Distribution period shall be computed on
the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed in a partial month in a period. Distributions
payable for each full Distribution period will be computed by dividing
the rate per annum by four. The amount of Distributions payable for any
period shall include any Additional Amounts in respect of such period.
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(iv) 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 Issuer Trust has
funds then on hand and available in the Payment Account for the payment
of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities at the close of business on the
relevant record date, which shall be at the close of business on the fifteenth
day (whether or not a Business Day) next preceding the relevant Distribution
Date.
SECTION 4.2. Redemption. (a) On each Debenture Redemption Date
and on the stated maturity of the Debentures, the Issuer Trust will be required
to redeem a Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register.
Notwithstanding the aforementioned sentence, if the redemption results from the
acceleration of the maturity of the Debentures and the Property Trustee cannot
reasonably give such notice of redemption within the prescribed period, then the
notice will be given as soon as practicable. All notices of redemption shall
state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to (and as defined
in) the Indenture together with a statement that it is an estimate and
that the actual Redemption Price will be calculated on the third
Business Day prior to the Redemption Date (and if an estimate is
provided, a further notice shall be sent of the actual Redemption Price
on the date that such Redemption Price is calculated);
(iii) the CUSIP number or CUSP numbers of the Preferred
Securities affected;
(iv) if less than all 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 will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accumulate on and after said
date, except as provided in Section 4.2(d) below; and
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(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities may use
"CUSP" numbers (if then generally in use), and, if so, the Property Trustee
shall indicate the "CUSP" numbers of the Trust Securities in notices of
redemption and related materials as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Trust Securities or as contained in any
notice of redemption and related materials.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the Issuer Trust has funds then on hand and available in
the Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee will, with
respect to Book-Entry Preferred Securities, irrevocably deposit with the
Clearing Agency for such Book-Entry Preferred Securities, to the extent
available therefor, funds sufficient to pay the applicable Redemption Price and
will give such Clearing Agency irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities. With respect to
Preferred Securities that are not Book-Entry Preferred Securities, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent or Paying Agents, to the extent available therefor, funds sufficient to
pay the applicable Redemption Price and will give the Paying Agent or Paying
Agents irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities 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 Securities
Register 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 Holders holding Trust Securities so
called for redemption will cease, except the right of such Holders to receive
the Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
Securities will cease to be Outstanding. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Issuer
Trust or by the Depositor pursuant to the Guarantee
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Agreement, Distributions on such Trust Securities will continue to accumulate,
as set forth in Section 4.1, from the Redemption Date originally established by
the Issuer Trust for such Trust Securities to the date such Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated pro rata to the Common Securities and the Preferred Securities based
upon the relative Liquidation Amounts. The particular Preferred Securities to be
redeemed shall be selected by the Property Trustee based upon any method of
selection that it deems to be fair and appropriate (which may be by lot),
including any method that involves the redemption of a portion of the aggregate
Liquidation Amount of any particular holder's Preferred Securities not more than
60 days prior to the Redemption Date from the Outstanding Preferred Securities
not previously called for redemption, provided that so long as the Preferred
Securities are in book-entry-only form, such selection shall be made in
accordance with the customary procedures for the Clearing Agency for the
Preferred Securities. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Declaration
of Trust, 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 that has been or is to be
redeemed.
SECTION 4.3. Subordination of Common Securities. (a) Payment
of Distributions (including any Additional Amounts) on, the Redemption Price of,
and the Liquidation Distribution in respect of the Trust Securities, as
applicable, shall be made, subject to Section 4.2(e), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date,
Redemption Date or Liquidation Date any Event of Default shall have occurred and
be continuing, no payment of any Distribution (including any Additional Amounts)
on, Redemption Price of, or Liquidation Distribution in respect of any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including any Additional
Amounts) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount in cash of such Redemption Price on all Outstanding
Preferred Securities then called for redemption, or in the case of payment of
the Liquidation Distribution the full amount of such Liquidation Distribution on
all Outstanding Preferred Securities, shall have been made or provided for, and
all funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including any Additional
Amounts) on, or the Redemption Price of, the Preferred Securities then due and
payable.
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(b) In the case of the occurrence of any Event of Default, the
Holders of the Common Securities shall have no right to act with respect to any
such Event of Default under this Declaration of Trust until the effect of all
such Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until all such Events of Default under this
Declaration of Trust with respect to the Preferred Securities have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not on behalf of the
Holders of the Common Securities, and only the Holder of all the Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf. Notwithstanding the foregoing, the Holders of Common Securities may act
with respect to an Event of Default that results solely from a default in the
payment of any amount due and payable on the Common Securities, or from a
default or breach under any covenant herein made solely for the benefit of the
Holders of Common Securities (a "Common Securities Default"), subject to the
following conditions. The action of the Holders of the Common Securities must
not adversely affect the interests of the Holders of Preferred Securities and no
Event of Default (and no event or condition that after the passage of time or
giving of notice would result in an Event of Default) that is not a Common
Securities Default may have occurred and be continuing.
The Issuer Trust will not make any payment or other
distribution in respect of the Common Securities (including on account of any
purchase or other acquisition) while the Preferred Securities are outstanding,
other than Distributions, the Redemption Price and the Liquidation Distribution
on the terms set forth herein.
SECTION 4.4. Payment Procedures. Payments of Distributions
(including any Additional Amounts) or of the Redemption Price, Liquidation
Amount or any other amounts in respect of the Preferred Securities shall be made
at the option of the Issuer Trust, either at the offices of any Paying Agent or
by check mailed to the address of the Person entitled thereto as such address
shall appear on the Securities Register or, if the Preferred Securities are held
by a Clearing Agency, such Distributions shall be made to the Clearing Agency in
immediately available funds. 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 all the Common Securities.
SECTION 4.5. Withholding Tax. The Issuer Trust and the
Administrators shall comply with all withholding and backup withholding tax
requirements under United States federal, state and local law. The Issuer Trust
shall request, and the Holders shall provide to the Issuer Trust, such forms or
certificates as are necessary to establish an exemption from withholding and
backup withholding tax with respect to each Holder, and any representations and
forms as shall reasonably be requested by the Issuer Trust to assist it in
determining the extent of, and in fulfilling, its withholding and backup
withholding tax obligations. The Administrators shall file required forms with
applicable jurisdictions and, unless an exemption from withholding and backup
withholding tax is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the
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Issuer 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 overwithholding, 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 Issuer Trust may
reduce subsequent Distributions by the amount of such required withholding.
SECTION 4.6. Tax Returns and Reports. The Administrators shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States federal, state and local tax and information returns and reports
required to be filed by or in respect of the Issuer Trust. In this regard, the
Administrators shall (a) prepare and file (or cause to be prepared and filed)
all Internal Revenue Service forms and returns required to be filed in respect
of the Issuer Trust in each taxable year of the Issuer Trust, and (b) prepare
and furnish (or cause to be prepared and furnished) to each Holder all Internal
Revenue Service forms and returns required to be provided by the Issuer Trust.
The Administrators shall provide the Depositor and the Property Trustee with a
copy of all such returns and reports promptly after such filing or furnishing.
SECTION 4.7. Payment of Taxes, Duties, Etc. of the Issuer
Trust. Upon receipt under the Debentures of Additional Sums, the Property
Trustee shall promptly pay at the written direction of an Administrator or
Depositor any Additional Taxes imposed on the Issuer Trust by the United States
or any other taxing authority.
SECTION 4.8. Payments Under Indenture or Pursuant to Direct
Actions. Any amount payable hereunder to any Holder of Preferred Securities
shall be reduced by the amount of any corresponding payment such Holder has
directly received pursuant to Section 5.8 of the Indenture or Section 5.13 of
this Declaration of Trust.
SECTION 4.9. Liability of the Holder of Common Securities. Any
Holder of the Common Securities shall be liable for the debts and obligations of
the Issuer Trust in the manner and to the extent set forth with respect to the
Corporation (as defined in the Expense Agreement) and agrees that it shall be
subject to all liabilities to which the Corporation may be subject, and shall
make all payments that the Corporation is required to make, under the terms of
the Expense Agreement.
SECTION 4.10. Other Purchases of Preferred Securities. Subject
to applicable law (including United States federal securities laws), the Issuer
Trust may purchase Outstanding Preferred Securities by tender, in the open
market or by private agreement. These purchases may occur at any time and from
time to time other than during an Extension Period.
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ARTICLE V.
SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the creation of the
Issuer Trust and the contribution by the Depositor referred to in Section 2.3
and until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Issuer Trust.
SECTION 5.2. The Securities Certificates. (a) 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. The Securities Certificates
shall be executed on behalf of the Issuer Trust by manual signature of at least
one Administrator. Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Issuer Trust, shall be validly issued and
entitled to the benefits of this Declaration of Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Securities Certificates or did not hold such offices at the
date of delivery of such Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more Global Preferred
Securities registered in the name of DTC, as Clearing Agency, or its nominee and
deposited with DTC or a custodian for DTC for credit by DTC to the respective
accounts of the Owners thereof (or such other accounts as they may direct),
provided that upon deposit all European Trust Securities shall be credited to or
through accounts maintained at DTC by or on behalf of Euroclear or Cedel.
(c) Upon their original issuance, Preferred Securities
Certificates may be issued in whole or in part in the form of one or more
Definitive Preferred Securities Certificates registered in the name of holders
as designated by the underwriters in a particular offering.
(d) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a definitive
Common Securities Certificate.
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SECTION 5.3. Execution and Delivery of Securities
Certificates. At the Time of Delivery, the Administrators shall cause Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4 and
2.5, to be executed on behalf of the Issuer Trust and delivered to or upon the
written order of the Depositor, executed by an authorized officer thereof,
without further corporate action by the Depositor, in authorized denominations.
SECTION 5.4. Book-Entry Preferred Securities. (a) Each Global
Preferred Security issued under this Agreement shall be registered in the name
of the Clearing Agency or a nominee thereof and delivered to such Clearing
Agency or a nominee thereof or custodian therefor, and each such Global
Preferred Security shall constitute a single Preferred Securities Certificate
for all purposes of this Agreement.
(b) Notwithstanding any other provision in this Declaration of
Trust, no Global Preferred Security may be exchanged in whole or in part for
Preferred Securities Certificates registered, and no transfer of a Global
Preferred Security in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Preferred Security or a
nominee thereof unless (i) the Clearing Agency advises the Property Trustee in
writing that the Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Global Preferred Security,
and the Property Trustee is unable to locate a qualified successor, (ii) the
Issuer Trust at its option advises the Depositary in writing that it elects to
terminate the book-entry system through the Clearing Agency, or (iii) an Event
of Default has occurred and is continuing and a holder of Preferred Securities
notifies the Property Trustee in writing that it wishes to receive a Definitive
Preferred Securities Certificate. Upon the occurrence of any event specified in
clause (i), (ii) or (iii) above, the Administrators shall notify the Clearing
Agency and instruct the Clearing Agency to notify all Owners of Book-Entry
Preferred Securities, the Delaware Trustee and the Administrators of the
occurrence of such event and of the availability of the Definitive Preferred
Securities Certificates to Owners of the Preferred Securities requesting the
same.
(c) If any Global Preferred Security is to be exchanged for
other Preferred Securities Certificates or canceled in part, or if any other
Preferred Securities Certificate is to be exchanged in whole or in part for
Book-Entry Preferred Securities represented by a Global Preferred Security, then
either (i) such Global Preferred Security shall be so surrendered for exchange
or cancellation as provided in this Article V or (ii) the aggregate Liquidation
Amount represented by such Global Preferred Security shall be reduced, subject
to Section 5.2, or increased by an amount equal to the Liquidation Amount
represented by that portion of the Global Preferred Security to be so exchanged
or canceled, or equal to the Liquidation Amount represented by such other
Preferred Securities Certificates to be so exchanged for Book-Entry Preferred
Securities represented thereby, as the case may be, by means of an appropriate
adjustment made on the records of the Securities 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. Upon surrender to the Administrators or the
Securities Registrar of the Global Preferred Security or Securities by the
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Clearing Agency, accompanied by registration instructions, the Administrators,
or any one of them, shall execute the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. None of
the Securities Registrar, the Issuer Trustees or the Administrators shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Issuer Trustees
and Administrators shall recognize the Holders of the Definitive Preferred
Securities Certificates as Holders. The Definitive Preferred Securities
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Administrators, as evidenced
by the execution thereof by the Administrators or any one of them.
(d) Every Preferred Securities Certificate executed and
delivered upon registration or transfer of, or in exchange for or in lieu of, a
Global Preferred Security or any portion thereof, whether pursuant to this
Article V or Article IV or otherwise, shall be executed and delivered in the
form of, and shall be, a Global Preferred Security, unless such Preferred
Securities Certificate is registered in the name of a Person other than the
Clearing Agency for such Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as registered owner of
a Global Preferred Security, shall be the Holder of such Global Preferred
Security for all purposes under this Agreement and the Global Preferred
Security, and Owners with respect to a Global Preferred Security shall hold such
interests pursuant to the Applicable Procedures. The Securities Registrar and
the Property Trustee shall be entitled to deal with the Clearing Agency for all
purposes of this Declaration of Trust relating to the Global Preferred
Securities (including the payment of the Liquidation Amount of and Distributions
on the Book-Entry Preferred Securities represented thereby and the giving of
instructions or directions by Owners of Book-Entry Preferred Securities
represented thereby) as the sole Holder of the Book-Entry Preferred Securities
represented thereby and shall have no obligations to the Owners thereof. None of
the Property Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
The rights of the Owners of the Book-Entry Capital Securities
shall be exercised only through the Clearing Agency and shall be limited to
those established by law, the Applicable Procedures and agreements between such
Owners and the Clearing Agency and/or the Clearing Agency Participants, provided
that, solely for the purpose of determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Declaration of Trust, so long as Definitive Preferred Security Certificates have
not been issued, the Issuer Trustees may conclusively rely on, and shall be
fully protected in relying on, any written instrument (including a proxy)
delivered to the Property Trustee by the Clearing Agency setting forth the
Owners' votes or assigning the right to vote on any matter to any other Persons
either in whole or in part. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.4(b), the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and
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receive and transmit payments on the Preferred Securities to such Clearing
Agency Participants, and none of the Depositor, the Administrators or the Issuer
Trustees shall have any responsibility or obligation with respect thereto.
SECTION 5.5. Registration of Transfer and Exchange of
Preferred Securities Certificates. (a) The Property Trustee shall keep or cause
to be kept, at its Corporate Trust Office, a register or registers (the
"Securities Register") in which the registrar and transfer agent with respect to
the Trust Securities (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
5.11 in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein provided.
The Property Trustee is hereby appointed Securities Registrar for the purpose of
registering Preferred Securities Certificates and (subject to Section 5.11)
Common Securities Certificates and transfers and exchanges thereof as provided
herein.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.9, the Administrators or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall deliver, in the name of the
designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
as may be required by this Declaration of Trust dated the date of execution by
such Administrator.
The Securities Registrar shall not be required, (i) to issue,
register the transfer of or exchange any Preferred Security during a period
beginning at the opening of business 15 days before the day of selection for
redemption of such Preferred Securities pursuant to Article IV and ending at the
close of business on the day of mailing of the notice of redemption, or (ii) to
register the transfer of or exchange any Preferred Security so selected for
redemption in whole or in part, except, in the case of any such Preferred
Security to be redeemed in part, any portion thereof not to be redeemed.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Securities Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed
of by the Property Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Issuer Trust
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.
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(b) Notwithstanding any other provision of this Agreement,
transfers and exchanges of Preferred Securities Certificates and beneficial
interests in a Global Preferred Security of the kinds specified in this Section
5.5(b) shall be made only in accordance with this Section 5.5(b).
(i) Non-Global Preferred Security to Global Preferred
Security. If the Holder of a Preferred Securities Certificate (other
than a Global Preferred Security) 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 Preferred Security, such transfer may be effected only in
accordance with the provisions of this clause (b)(i) and subject to the
Applicable Procedures. Upon receipt by the Securities Registrar of (A)
such Preferred Securities Certificate as provided in Section 5.5(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Preferred Security 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
Securities Registrar shall cancel such Preferred Securities Certificate
(and issue a new Preferred Securities Certificate in respect of any
untransferred portion thereof) as provided in Section 5.5(a) and
increase the aggregate Liquidation Amount of the Global Preferred
Security by the Liquidation Amount represented by such Preferred
Securities so transferred as provided in Section 5.4(c).
(ii) Non-Global Preferred Security to Non-Global Preferred
Security. A Preferred Securities Certificate that is not a Global
Preferred Security 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 Preferred Security as provided in
Section 5.5(a).
(iii) Exchanges between Global Preferred Security and
Non-Global Preferred Security. A beneficial interest in a Global
Preferred Security may be exchanged for a Preferred Securities
Certificate that is not a Global Preferred Security as provided in
Section 5.4 .
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Securities
Certificates. If (a) any mutilated Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Securities
Certificate, and (b) there shall be delivered to the Securities Registrar and
the Administrators such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice that such Securities
Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Issuer Trust shall execute
and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Securities Certificate, a new Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Securities Certificate under this Section 5.6, the
Administrators or the Securities Registrar may require the payment of a sum
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sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Securities Certificate issued pursuant to
this Section 5.6 shall constitute conclusive evidence of an undivided beneficial
interest in the assets of the Issuer Trust corresponding to that evidenced by
the lost, stolen or destroyed Securities Certificate, as if originally issued,
whether or not the lost, stolen or destroyed Securities Certificate shall be
found at any time.
SECTION 5.7. Persons Deemed Holders. The Issuer Trustees, the
Administrators and the Securities Registrar shall each treat the Person in whose
name any Securities Certificate shall be registered in the Securities Register
as the owner of such Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and none of the Issuer
Trustees, the Administrators and the Securities Registrar shall be bound by any
notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Delaware Trustee or the Administrators
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.9. Maintenance of Office or Agency. The Property
Trustee shall designate, with the consent of the Administrators, which consent
shall not be unreasonably withheld, 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 Issuer
Trustees in respect of the Trust Securities Certificates may be served. The
Property Trustee initially designates the Corporate Trust Office, Attention:
Corporate Trust Administration, as its office and agency for such purposes. The
Property Trustee shall give prompt written notice to the Depositor, the
Administrators and to the Holders of any change in the location of the
Securities Register or any such office or agency.
SECTION 5.10. Appointment of Paying Agents. The Paying Agent
or Paying Agents shall make Distributions to Holders from the Payment Account
and shall report the amounts of such Distributions to the Property Trustee and
the Administrators. Any Paying Agent shall have the revocable power to withdraw
funds from the Payment Account solely for the purpose of making the
Distributions referred to above. The Property Trustee may revoke such power and
remove the Paying Agent in its sole discretion. The Paying Agent shall initially
be the Property Trustee. Any Person acting as Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Administrators and
the Property Trustee. If the Property Trustee shall no longer be the Paying
Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Property Trustee shall appoint a successor (which shall be a bank
or trust company) that is reasonably acceptable to the Administrators to act as
Paying Agent. Such successor Paying Agent or any additional Paying Agent shall
execute and deliver to the Issuer Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Issuer Trustees
that as Paying Agent, such successor Paying Agent or
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additional Paying Agent will hold all sums, if any, held by it for payment to
the Holders in trust for the benefit of the Holders entitled thereto until such
sums shall be paid to such Holders. The Paying Agent shall return all funds
remaining unclaimed for two years to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein 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 5.11. Ownership of Common Securities by Depositor. At
the Time of Delivery, the Depositor shall acquire, and thereafter shall retain,
beneficial and record ownership of the Common Securities. Neither the Depositor
nor any successor Holder of the Common Securities may transfer less than all the
Common Securities, and the Depositor or any such successor Holder may transfer
the Common Securities only (i) in connection with a consolidation or merger of
the Depositor into another corporation, or any conveyance, transfer or lease by
the Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, or (ii) to the Depositor or an
Affiliate of the Depositor in compliance with applicable law (including the
Securities Act, and applicable state securities and blue sky laws), and in
either case only upon an effective assignment and delegation by the Holder of
all the Common Securities to its transferee of all of its rights and obligations
under the Expense Agreement. To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be void. The Administrators shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating substantially "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE
WITH APPLICABLE LAW AND SECTION 5.11 OF THE DECLARATION OF TRUST AND ONLY IN
CONNECTION WITH A SIMULTANEOUS DELEGATION AND ASSIGNMENT OF THE EXPENSE
AGREEMENT REFERRED TO THEREIN."
SECTION 5.12. Notices to Clearing Agency. To the extent that a
notice or other communication to the Holders is required under this Declaration
of Trust, for so long as Preferred Securities are represented by a Global
Preferred Security, the Administrators and the Issuer Trustee shall give all
such notices and communications specified herein to be given to the Clearing
Agency, and shall have no obligations to the Owners.
SECTION 5.13 Rights of Holders; Waivers of Past Defaults. (a)
The legal title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section 2.9, and the
Holders shall not have any right or title therein other than the undivided
beneficial interest in the assets of the Issuer 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 Issuer Trust except as described below. The
Holders shall not have any preemptive or other similar rights. The Trust
Securities shall be personal property giving only the rights
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specifically set forth therein and in this Declaration of Trust. The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Holders against payment of the purchase price therefor will be
fully paid and nonassessable by the Issuer Trust. Subject to the provisions of
Section 4.8, 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.
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in principal amount of the outstanding
Debentures fail to declare the principal of all of the Debentures to be
immediately due and payable, the Holders of at least 25% in Liquidation Amount
of the Preferred Securities then Outstanding shall have the right to make such
declaration by a notice in writing to the Property Trustee, the Debenture Issuer
and the Debenture Trustee.
At any time after a declaration of acceleration with respect
to the Debentures has been made and before a judgment or decree for payment of
the money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Property Trustee fails to annul any such declaration and waive
such default, the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, by written notice to the Property Trustee, the Debenture
Issuer and the Debenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the rescission would not conflict with any judgement or
decree of a court of competent jurisdiction and
(ii) all Events of Default with respect to the Debentures,
other than the non-payment of the principal of the Debentures that has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of
the Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default under the Indenture,
except a default or Event of Default in the payment of principal or interest
(and any Additional Sum) (unless such default or Event of Default has been cured
and a sum sufficient to pay all matured installments of interest and principal
(and any Additional Sum) due otherwise than by acceleration has been deposited
with the Debenture Trustee) or a default or Event of Default in respect of a
covenant or provision that under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Debenture. No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of any part of the Preferred Securities a record date shall be established for
determining Holders of Outstanding Preferred
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Securities entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day that is 90 days after such record date, such notice of
declaration of acceleration, or rescission and annulment, as the case may be,
shall automatically and without further action by any Holder be canceled and of
no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Declaration of Trust and the Indenture, upon a Debenture Event of Default
specified in Section 5.1(1) or 5.1(2) of the Indenture, any Holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Debenture Issuer, pursuant to Section 5.8 of the Indenture, for enforcement of
payment to such Holder of any amounts payable in respect of Debentures having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such Holder (a "Direct Action"). Except as set forth in
Section 5.13(b) and this Section 5.13(c), the Holders of Preferred Securities
shall have no right to exercise directly any right or remedy available to the
holders of, or in respect of, the Debentures.
(d) Except as otherwise provided in paragraphs (a), (b) and
(c) of this Section 5.13, the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any past default or Event of Default and its
consequences. Upon such waiver, any such default or Event of Default shall cease
to exist, and any default or Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Declaration of Trust, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
ARTICLE VI.
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights. (a) Except as
expressly provided in this Declaration of Trust 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 Issuer Trust or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Securities
Certificates,
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be construed so as to constitute the Holders from time to time as partners or
members of an association.
(b) So long as any Debentures are held by the Property Trustee
on behalf of the Issuer Trust, the Property Trustee shall not (i) direct the
time, method and place of conducting any proceeding for any remedy available to
the Debenture Trustee, or execute any trust or power conferred on the Property
Trustee with respect to the Debentures, (ii) waive any past default that may be
waived under Section 5.13 of the Indenture, (iii) exercise any right to rescind
or annul a declaration that the principal of all the Debentures shall be due and
payable, or (iv) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, provided, however, that where a
consent under the Indenture would require the consent of each Holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Preferred
Securities. The Property Trustee 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 the Preferred Securities of any
notice of default actually received by a Responsible Officer with respect to the
Debentures. In addition to obtaining the foregoing approvals of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Issuer Trustees shall, at the expense of the Depositor, be provided with an
Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Issuer Trust to be taxable as a corporation, or classified
as other than a grantor trust, or cause the Debentures to be treated as other
than indebtedness of the Issuer Trust, for United States federal income tax
purposes.
(c) If any proposed amendment to the Declaration of Trust
provides for, or the Issuer Trustees otherwise propose to effect, (i) any action
that would adversely affect in any material respect the powers, preferences or
special rights of the Preferred Securities, whether by way of amendment to the
Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or
termination of the Issuer Trust, other than pursuant to the terms of this
Declaration of Trust, 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 each Holder of
the Preferred Securities. Notwithstanding any other provision of this
Declaration of Trust, no amendment to this Declaration of Trust may be made if,
as a result of such amendment, it would cause the Issuer Trust to be taxable as
a corporation or classified as other than a grantor trust, or cause the
Debentures to be treated other than indebtedness of the Debenture Issuer, for
United States federal income tax purposes.
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SECTION 6.2. 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 10.9 to each
Holder of Preferred Securities, at such Holder's 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 6.3. Meetings of Holders of the Preferred Securities.
No annual meeting of Holders is required to be held. The Property Trustee,
however, shall call a meeting of the Holders of the Preferred Securities to vote
on any matter upon the written request of the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities and the
Administrators or the Property Trustee may, at any time in their discretion,
call a meeting of the Holders of the Preferred Securities to vote on any matters
as to which such Holders are entitled to vote.
The Holders of a Majority in Liquidation Amount of the
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Preferred Securities.
If a quorum is present at a meeting, an affirmative vote by
the Holders present, in person or by proxy, holding Preferred Securities
representing at least a majority of the aggregate Liquidation Amount of the
Preferred Securities held by the Holders present, either in person or by proxy,
at such meeting shall constitute the action of the Holders of the Preferred
Securities, unless this Declaration of Trust requires a greater number of
affirmative votes.
SECTION 6.4. Voting Rights. Holders shall be entitled to one
vote for each [$25] of Liquidation Amount represented by their Outstanding Trust
Securities in respect of any matter as to which such Holders are entitled to
vote.
SECTION 6.5. Proxies, Etc. At any meeting of Holders, any
Holder entitled to vote thereat may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Property Trustee, or with such other officer or agent of the Issuer Trust as the
Property Trustee may direct, for verification prior to the time at which such
vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies
may be solicited in the name of the Property Trustee or one or more officers of
the Property Trustee. Only Holders of record shall be entitled to vote. When
Trust Securities are held jointly by several persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Holder shall be deemed
valid unless challenged at or prior to its exercise, and the burden of
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proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.6. Holder Action by Written Consent. Any action that
may be taken by Holders at a meeting may be taken without a meeting and without
prior notice if Holders holding at least a Majority in Liquidation Amount of all
Preferred Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this
Declaration of Trust) shall consent to the action in writing. Any action that
may be taken by the Holders of all the Common Securities may be taken if such
Holders shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For
the purposes of determining the Holders 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 of Trust, or for the purpose of any other
action, the Administrators or Property Trustee may from time to time fix a date,
not more than 90 days prior to the date of any meeting of Holders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Holders of record for such purposes.
SECTION 6.8. Acts of Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration of Trust to be given, made or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders 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 the Property
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
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 of Trust and (subject to Section 8.1) conclusive in
favor of the Issuer Trustees and the Administrators, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such 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 that any Issuer Trustee or
Administrator receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the
Securities Register.
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Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder of every Trust
Security issued upon the registration or transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Issuer Trustees, the Administrators or the Issuer Trust in
reliance thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the
Administrators or the Issuer Trustees with respect to the authenticity, validity
or binding nature of any request, demand, authorization, direction, consent,
waiver or other Act of such Holder or Issuer Trustee under this Article VI, then
the determination of such matter by the Property Trustee shall be conclusive
with respect to such matter.
SECTION 6.9. Inspection of Records. Upon reasonable prior
written notice to the Administrators and the Property Trustee, the records of
the Issuer Trust shall be open to inspection by any Holder during normal
business hours for any purpose reasonably related to such Holder's interest as a
Holder.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee. The Property Trustee and the Delaware Trustee,
each severally on behalf of and as to itself, hereby represents and warrants for
the benefit of the Depositor and the Holders that:
(a) the Property Trustee is a New York banking corporation,
duly organized, validly existing and in good standing under the laws of
the State of New York;
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration of Trust and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Declaration of Trust;
(c) the Delaware Trustee is a Delaware banking corporation;
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(d) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations under
this Declaration of Trust and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Declaration of Trust;
(e) this Declaration of Trust has been duly authorized,
executed and delivered by the Property Trustee and the Delaware Trustee
and constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of
them in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(f) the execution, delivery and performance of this
Declaration of Trust has been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and the
Delaware Trustee and does not require any approval of stockholders of
the Property Trustee and the Delaware Trustee and such execution,
delivery and performance will not (i) violate the Charter or By-laws of
the Property Trustee or the Delaware Trustee, (ii) to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge without
any 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 applicable law, governmental
rule or regulation of the United States or the State of Delaware, as
the case may be, governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or
any order, judgment or decree applicable to the Property Trustee or the
Delaware Trustee;
(g) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Declaration of Trust
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 law of the United
States or the State of Delaware governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee, as the case may
be; and
(h) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge without
any independent investigation, 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 that,
individually or in the aggregate, would materially and adversely affect
the Issuer Trust or
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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 of Trust.
SECTION 7.2. Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Holders that:
(a) the Securities Certificates issued at the Time of Delivery
on behalf of the Issuer Trust have been duly authorized and will have
been duly and validly executed, issued and delivered by the Issuer
Trustees pursuant to the terms and provisions of, and in accordance
with the requirements of, this Declaration of Trust and the Holders
will be, as of each such date, entitled to the benefits of this
Declaration of Trust; and
(b) there are no taxes, fees or other governmental charges
payable by the Issuer Trust (or the Issuer Trustees on behalf of the
Issuer Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and
performance by either Issuer Trustee of this Declaration of Trust.
ARTICLE VIII.
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities. (a) The
duties and responsibilities of the Issuer Trustees and the Administrators shall
be as provided by this Declaration of Trust and, in the case of the Property
Trustee, by the Trust Indenture Act. Notwithstanding the foregoing, but subject
to Section 8.1(c), no provision of this Declaration of Trust shall require any
of the Issuer Trustees or Administrators to expend or risk its or their own
funds or otherwise incur any financial liability in the performance of any of
its or their duties hereunder, or in the exercise of any of its or their rights
or powers. Whether or not therein expressly so provided, every provision of this
Declaration of Trust relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees or the Administrators shall be
subject to the provisions of this Section 8.1. Nothing in this Declaration of
Trust shall be construed to release an Administrator from liability for his or
her own negligent action, its own negligent failure to act, or his or her own
wilful misconduct. To the extent that, at law or in equity, an Issuer Trustee or
Administrator has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee or Administrator shall not be liable to the Issuer
Trust or to any Holder for such Issuer Trustee's or Administrator's good faith
reliance on the provisions of this Declaration of Trust. The provisions of this
Declaration of Trust, to the extent that they restrict the duties and
liabilities of the Issuer Trustees and Administrators otherwise existing at law
or in equity, are agreed by the Depositor and the Holders to replace such other
duties and liabilities of the Issuer Trustees and Administrators.
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(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 Holder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that neither the Issuer
Trustees nor the Administrators are personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.1(b) does not limit the liability
of the Issuer Trustees expressly set forth elsewhere in this Declaration of
Trust or, in the case of the Property Trustee, in the Trust Indenture Act.
(c) If an Event of Default has occurred and is continuing, the
Property Trustee shall enforce this Declaration of Trust for the benefit of the
Holders.
(d) The Property Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration of Trust (including pursuant to Section 10.11), and no implied
covenants shall be read into this Declaration of Trust against the Property
Trustee. If an Event of Default has occurred (that has not been cured or waived
pursuant to Section 5.13), the Property Trustee shall exercise such of the
rights and powers vested in it by this Declaration of Trust and use the same
degree of care and skill in its exercise thereof as a prudent person would
exercise or use in the conduct of his or her own affairs.
(e) No provision of this Declaration of Trust shall be
construed to relieve the Property Trustee or the Delaware Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
wilful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Declaration of Trust (including pursuant to Section
10.11), and the Property Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration of Trust (including
pursuant to Section 10.11); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration of Trust; but in the case of
any such certificates or opinions that by any provision hereof
or of the Trust Indenture Act are specifically required to be
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furnished to the Property Trustee, the Property Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Declaration of
Trust (but need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein).
(ii) 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;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration of Trust;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration of Trust and
the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the Depositor with
their respective duties under this Declaration of Trust, nor shall the
Property Trustee be liable for the default or misconduct of any other
Issuer Trustee, the Administrators or the Depositor; and
(vii) subject to Section 8.1(c), no provision of this
Declaration of Trust shall require the Property Trustee to expend or
risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its
rights or powers.
(f) The Administrators shall not be responsible for monitoring
the compliance by the Issuer Trustees or the Depositor with their respective
duties under this Declaration of Trust, nor shall either Administrator be liable
for the default or misconduct of any other Administrator, the Issuer Trustees or
the Depositor.
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SECTION 8.2. Certain Notices. Within five Business Days after
the occurrence of any Event of Default actually known to a Responsible Officer
of the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.9, notice of such Event of Default to the
Holders and the Administrators, unless such Event of Default shall have been
cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.9, notice of such exercise
to the Holders and the Administrators, unless such exercise shall have been
revoked.
The Property Trustee shall not be deemed to have knowledge of
any Event of Default unless the Property Trustee shall have received written
notice or a Responsible Officer of the Property Trustee charged with the
administration of this Declaration of Trust shall have obtained actual knowledge
of such Event of Default.
SECTION 8.3. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written representation
of a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) if (i) in performing its duties under this Declaration of
Trust the Property Trustee is required to decide between alternative
courses of action, (ii) in construing any of the provisions of this
Declaration of Trust 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 of Trust, then, except as to any matter as to which the
Holders of the Preferred Securities are entitled to vote under the
terms of this Declaration of Trust, the Property Trustee shall deliver
a notice to the Depositor requesting the Depositor's opinion 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 deem advisable and in the best interests of the Holders, in which
event the Property Trustee shall have no liability except for its own
bad faith, negligence or wilful misconduct;
(c) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers'
Certificate;
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(d) any direction or act of an Administrator contemplated by
this Trust Agreement shall be sufficiently evidenced by a certificate
executed by such Administrator and setting forth such direction or act;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, re-filing or re-registration
thereof;
(f) the Property Trustee may consult with counsel of its own
selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon and in accordance with such advice;
the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration of Trust
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
of Trust at the request or direction of any of the Holders pursuant to
this Declaration of Trust, unless such Holders shall have offered to
the Property Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction; provided that, nothing
contained in this Section 8.3(g) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Declaration of
Trust;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to
do so by one or more Holders, but the Property Trustee may make such
further inquiry or investigation into such facts or matters as it may
see fit at the expense of the Depositor and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents, attorneys, custodians or nominees, provided that
the Property Trustee shall be responsible for its own negligence, bad
faith or wilful misconduct with respect to selection of any agent,
attorney, custodian or nominee appointed by it hereunder;
(j) whenever in the administration of this Declaration of
Trust the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Property Trustee (i) may request
instructions from the Holders (which instructions may only be given by
the Holders of the
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same proportion in Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action), (ii) may
refrain from enforcing such remedy or right or taking such other action
until such instructions are received and (iii) shall be fully protected
in acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Declaration
of Trust, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration of Trust; and
(l) when the Property Trustee incurs expenses or renders
services in connection with a Bankruptcy Event, such expenses
(including legal fees and expenses of its counsel) and the compensation
for such services are intended to constitute expenses of administration
under any bankruptcy law or law relating to creditors rights generally.
No provision of this Declaration of Trust shall be deemed to
impose any duty or obligation on any Issuer Trustee or Administrator 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
such Person 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 any Issuer Trustee
or Administrator shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities Certificates
shall be taken as the statements of the Issuer Trust, and the Issuer Trustees
and the Administrators do not assume any responsibility for their correctness.
The Issuer Trustees and the Administrators shall not be accountable for the use
or application by the Debenture Issuer of the proceeds of the Debentures.
SECTION 8.5. May Hold Securities. The Administrators, any
Issuer Trustee or any other agent of any Issuer Trustee or the Issuer Trust, in
its individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Issuer Trust with the same rights it would have if it were not an Administrator,
Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees. The Depositor
agrees:
(a) to pay to each Issuer Trustee and Paying Agent from time
to time such reasonable compensation for all services rendered by them
hereunder as may be agreed upon from time to time in writing by the
Depositor and such Issuer Trustee or Paying Agent, as the case may be,
from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
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(b) except as otherwise expressly provided herein, to
reimburse each Issuer Trustee upon request for all reasonable expenses,
disbursements and advances incurred or made by each Issuer Trustee and
Paying Agent in accordance with any provision of this Declaration of
Trust (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence or
wilful misconduct; and
(c) to the fullest extent permitted by applicable law, to
fully indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) each Paying Agent, (iv) any Affiliate of any
Issuer Trustee, (v) any officer, director, shareholder, employee,
representative or agent of any Issuer Trustee, and (vi) any employee or
agent of the Issuer Trust (referred to herein as an "Indemnified
Person") from and against any and all loss, damage, liability, tax
(other than income, franchise or other taxes imposed on amounts paid
pursuant to (a) or (b) hereof), penalty, expense or claim of any kind
or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation or termination of the Issuer Trust or any act
or omission performed or omitted by such Indemnified Person in good
faith on behalf of the Issuer 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 of Trust,
except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence, bad faith or wilful misconduct with
respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Declaration of Trust and the removal or resignation of any
Issuer Trustee.
No Issuer Trustee or Paying Agent may claim any Lien on any
Trust Property as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator, any Issuer Trustee and any
Paying Agent 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 Issuer Trust, and the Issuer Trust and the Holders of
Trust Securities shall have no rights by virtue of this Declaration of Trust 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
Issuer Trust, shall not be deemed wrongful or improper. Neither the Depositor,
any Administrator, any Paying Agent nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust even
if such opportunity is of a character that, if presented to the Issuer Trust,
could be taken by the Issuer Trust, and the Depositor, any Administrator, any
Issuer Trustee or any Paying Agent 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 Issuer Trustee or
Paying Agent may engage or be interested in any financial or other transaction
with the Depositor or any Affiliate of the Depositor, or may act as depository
for, trustee or agent
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for, or act on any committee or body of holders of, securities or other
obligations of the Depositor or its Affiliates.
In the event that the Property Trustee is also acting as
Paying Agent or Securities Registrar hereunder, the rights and protections
afforded to the Property Trustee pursuant to this Article VIII shall also be
afforded to such Paying Agent or Securities Registrar.
SECTION 8.7. Corporate Property Trustee Required; Eligibility
of Issuer Trustees and Administrators. (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 a national or state chartered bank and
eligible pursuant to the Trust Indenture Act to act as such, and that has at the
time of such appointment a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section 8.7 and to the extent permitted by the Trust
Indenture Act, 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 8.7, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. At the time of appointment, the Property
Trustee must have securities rated in one of the three highest rating categories
by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators
hereunder with respect to the Trust Securities. Each Administrator shall be
either a natural person who is at least 21 years of age or a legal entity that
shall act through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware, or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons authorized to bind
such entity.
SECTION 8.8. Conflicting Interests. (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 of Trust.
(b) The Guarantee Agreement and the Indenture shall be deemed
to be specifically described in this Declaration of Trust for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
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SECTION 8.9. Co-Trustees and Separate Trustee. Unless an Event
of Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the Property Trustee shall have power to appoint, and upon the written request
of the Property Trustee, the Depositor and the Administrators shall for such
purpose join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 8.9. Any co-trustee or separate
trustee appointed pursuant to this Section 8.9 shall either be (i) a natural
person who is at least 21 years of age and a resident of the United States, or
(ii) a legal entity with its principal place of business in the United States
that shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed by one or more
Administrators, and the Trust Securities shall be held by the Property
Trustee [as nominee for Cede & Co.], and all rights, powers, duties,
and obligations hereunder in respect of the custody of securities, cash
and other personal property held by, or required to be deposited or
pledged with, the Property Trustee specified hereunder shall be
exercised solely by the Property Trustee and not by such co-trustee or
separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by
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it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed
under this Section 8.9, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power to
accept the resignation of, or remove, any such co-trustee or separate
trustee without the concurrence of the Depositor. Upon the written
request of the Property Trustee, the Depositor shall join with the
Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigning or removed may be appointed in the manner provided
in this Section 8.9.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. Resignation and Removal; Appointment of
Successor. No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Issuer Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Issuer Trustee in accordance with the applicable requirements of
Section 8.11.
Subject to the immediately preceding paragraph, the Relevant
Trustee may resign at any time by giving written notice thereof to the Holders
and by appointing a successor Relevant Trustee. The Relevant Trustee shall
appoint a successor by requesting from at least three Persons meeting the
eligibility requirements its expenses and charges to serve as the Relevant
Trustee on a form provided by the Administrators, and selecting the Person who
agrees to the lowest expenses and charges. If a successor Relevant Trustee is
not appointed within 90 days of the Relevant Trustee's resignation or removal,
the Relevant Trustee may petition at the expense of the Depositor any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee or the Delaware Trustee, or both of them,
may be removed by Act of the Holders of at least a Majority in Liquidation
Amount of the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and, in the case of the Property Trustee, on behalf of the
Issuer Trust) (i) for cause (including upon the occurrence of an Event of
Default described in subparagraph (d) of the definition thereof with respect to
the Relevant Trustee), or (ii) if a Debenture Event of Default shall have
occurred and be continuing at any time.
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If a resigning Issuer Trustee shall fail to appoint a
successor, or if an Issuer Trustee shall be removed or become incapable of
acting as Issuer Trustee, or if a vacancy shall occur in the office of any
Issuer Trustee for any cause, the Holders of the Preferred Securities, by Act of
the Holders of not less than 25% in aggregate Liquidation Amount of the
Preferred Securities then Outstanding delivered to such Relevant Trustee, may
appoint a successor Relevant Trustee or Trustees, and such successor Issuer
Trustee shall comply with the applicable requirements of Section 8.11. If no
successor Relevant Trustee shall have been so appointed by the Holders of the
Preferred Securities and accepted appointment in the manner required by Section
8.11, any Holder, on behalf of such Holder and all others similarly situated, or
any other Issuer Trustee, may petition at the expense of the Depositor any court
of competent jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of an Issuer Trustee and each appointment of a successor Issuer
Trustee to all Holders in the manner provided in Section 10.9 and shall give
notice to the Depositor and to the Administrators. Each notice shall include the
name of the successor Relevant Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Declaration of Trust, if any Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by the Property Trustee following the procedures regarding expenses
and charges set forth above (with the successor being a Person who satisfies the
eligibility requirement for the Delaware Trustee set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor. In case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the Trust
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Trust Securities and
the Issuer Trust, and (b) shall add to or change any of the provisions of this
Declaration of Trust as shall be necessary to provide for or facilitate the
administration of the Issuer Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Issuer Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall (after being paid all amounts due it and its agents and
counsel) duly assign, transfer and deliver to such successor Relevant Trustee
all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
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Upon request of any such successor Relevant Trustee, the
Issuer Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the
case may be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
SECTION 8.12. Merger, Conversion, Consolidation or Succession
to Business. Any Person into which the Property Trustee or the Delaware Trustee
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person, succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust. If and when the Property Trustee shall be or become a
creditor of the Depositor or the Issuer Trust (or any other obligor upon the
Preferred Securities ), the Property Trustee shall be subject to the provisions
of the Trust Indenture Act regarding the collection of claims against the
Depositor or the Issuer Trust (or any such other obligor).
SECTION 8.14. Property Trustee May File Proofs of Claim. In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Issuer Trust or any other obligor upon the Trust Securities or
the property of the Issuer Trust or of such other obligor or their creditors,
the Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 8.15. Reports by Property Trustee. (a) Not later than
May 1 of each year commencing with May 1, 2000, the Property Trustee shall
transmit to all Holders in accordance with Section 10.9, and to the Depositor, a
brief report, dated as of the immediately preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under said
Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Declaration of Trust during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession
as 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 Holders
such reports concerning the Property Trustee and its actions under this
Declaration of Trust as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each national
stock exchange, the NASDAQ National Market or such other interdealer quotation
system or self-regulatory organization upon which the Trust Securities are
listed or traded, if any, with the Commission and with the Depositor.
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SECTION 8.16. Reports to the Property Trustee. Each of the
Depositor and the Administrators on behalf of the Issuer 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. The
Depositor and the Administrators shall annually file with the Property Trustee a
certificate specifying whether such Person is in compliance with all of the
terms and covenants applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions
Precedent. Each of the Depositor and the Administrators shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Declaration of Trust 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 8.18. Number of Issuer Trustees. (a) The number of
Issuer Trustees shall be two, provided that the Property Trustee and the
Delaware Trustee may be the same Person and in such case, the number of Issuer
Trustees shall be one.
(b) If an Issuer Trustee ceases to hold office for any reason,
a vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee shall not
operate to annul, dissolve or terminate the Issuer Trust.
SECTION 8.19. Delegation of Power. (a) Any Administrator may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.7(a), including any registration
statement or amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) The Administrators shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Issuer Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Declaration of Trust.
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SECTION 8.20. Appointment of Administrators. (a) The
Administrators shall initially be [ ] and [ ], and their successors shall be
appointed by the Holders of a Majority in Liquidation Amount of the Common
Securities and 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 Depositor shall appoint a successor Administrator. Each
Administrator shall sign an agreement agreeing to comply with the terms of this
Declaration of Trust. If at any time there is no Administrator, 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 Administrators.
(b) Whenever a vacancy in the number of Administrators shall
occur, until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 8.20, the Administrators in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Declaration of Trust.
(c) Notwithstanding the foregoing or any other provision of
this Declaration of Trust, if any Administrator who is a natural person dies or
becomes, in the opinion of the Holder 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 Administrators, if there were at least two of them prior to such
vacancy, and by the Depositor, if there were not two such Administrators
immediately prior to such vacancy (with the successor being a Person who
satisfies the eligibility requirement for Administrators set forth in Section
8.7).
ARTICLE IX.
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date. Unless earlier
dissolved, the Issuer Trust shall automatically dissolve, and its affairs be
wound up, on [55 years from the date of formation] (the "Expiration Date"), and
the Trust Property shall be distributed in accordance with Section 9.4.
SECTION 9.2. Early Dissolution. The first to occur of any of
the following events is an "Early Dissolution Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor, in its capacity as the
Holder of the Common Securities, unless the Depositor shall transfer
the Common Securities as provided by Section 5.11, in which case this
provision shall refer instead to any such successor Holder of the
Common Securities;
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(b) the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Issuer
Trust and to distribute the Debentures to Holders in exchange for the
Preferred Securities (which direction is optional and wholly within the
discretion of the Holder of the Common Securities);
(c) the redemption of all of the Trust Securities in
connection with the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust
by a court of competent jurisdiction.
Upon the happening of any Early Dissolution Event, the Issuer Trust shall
dissolve.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Issuer Trustees, the Administrators and the Issuer Trust
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Holders of all amounts required to be distributed
hereunder upon the liquidation of the Issuer Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b)
the payment or reasonable provision of any expenses owed by the Issuer Trust;
(c) the discharge of all administrative duties of the Administrators, including
the performance of any tax reporting obligations with respect to the Issuer
Trust or the Holders; and (d) the filing by either of the Issuer Trustees (each
of whom is authorized hereby to file such certificate) of a certificate of
cancellation of the Issuer Trust in the Office of the Secretary of State of the
State of Delaware.
SECTION 9.4. Liquidation. (a) If an Early Dissolution Event
specified in clause (a), (b) or (d) of Section 9.2 occurs or upon the Expiration
Date, the Issuer Trust shall be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible by distributing,
after satisfaction of liabilities to creditors of the Issuer Trust as provided
by applicable law, to each Holder a Like Amount of Debentures, subject to
Section 9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid mailed not less than 30 nor more than 60 days
prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All such notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Securities Certificates for Debentures,
or if Section 9.4(d) applies receive a
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Liquidation Distribution, as the Property Trustee (after consultation
with the Administrators) shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the Debentures to
Holders, the Property Trustee, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish a record date for
such distribution (which shall be the 15th day (whether or not a business day)
prior to the Liquidation Date) and, establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Debentures will be
issued to Holders of Securities Certificates, upon surrender of such
Certificates to the exchange agent for exchange, (iii) Securities Certificates
not so surrendered for exchange will be deemed to represent a Like Amount of
Debentures bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Securities
Certificates with respect to such Debentures) and (iv) all rights of Holders
holding Trust Securities will cease, except the right of such Holders to receive
Debentures upon surrender of Securities Certificates.
(d) If, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, or if an Early
Dissolution Event specified in clause (c) of Section 9.2 occurs, the Trust
Property shall be liquidated, and the Issuer Trust shall be dissolved by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution of the Issuer Trust, Holders will be
entitled to receive out of the assets of the Issuer Trust available for
distribution to Holders, after satisfaction of liabilities to creditors of the
Issuer Trust as provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, the Liquidation Distribution can be paid only in part
because the Issuer 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 Issuer Trust on the Trust Securities shall
be paid on a pro rata basis (based upon Liquidation Amounts). The Holder of the
Common Securities will be entitled to receive Liquidation Distributions upon any
such dissolution pro rata (determined as aforesaid) with Holders of all
Securities, except that, if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities as
provided in Section 4.3.
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SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of Issuer Trust. The Issuer 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 other Person, except
pursuant to this Article IX. At the request of the Holders of the Common
Securities and without the consent of any Holder of the Preferred Securities or
any Issuer Trustee or Administrator, the Issuer Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, that (i) such successor entity either (A)
expressly assumes all of the obligations of the Issuer Trust with respect to the
Preferred Securities, or (B) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities have the same
priority as the Preferred Securities with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) a trustee of such successor
entity possessing the same powers and duties as the Property Trustee is
appointed to hold the Debentures, (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 that then assigns a
rating to the Preferred Securities, (iv) the Successor Securities are listed, or
any Successor Securities will be listed upon notice of issuance, on any national
securities exchange or other organization on which the Preferred Securities are
then listed, if any, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose substantially identical to that of the Issuer Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease,
the Property Trustee has received an Opinion of Counsel to the effect that (A)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in any
material respect, and (B) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an "investment company" under
the Investment Company Act, and (viii) the Depositor or its permitted transferee
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 Agreement. Notwithstanding the foregoing,
the Issuer Trust shall not, except with the consent of Holders of all of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other 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
Issuer Trust or the successor entity to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes or cause the Debentures or any security succeeding such Debentures to
be treated as other than indebtedness of the Debenture Issuer for United States
federal income tax
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purposes unless Issuer Trust first obtains the consent of all Holders of
Outstanding Preferred Securities.
ARTICLE X.
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders. Except as set
forth in Section 9.2, the death or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate this
Declaration of Trust, nor entitle the legal representatives, successors, or
heirs of such Person or any Holder for such Person, to claim an accounting, take
any action or bring any proceeding in any court for a partition or winding up of
the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
SECTION 10.2. Agreed Tax Treatment of Issuer Trust and Trust
Securities. The parties hereto and, by its acceptance or acquisition of a Trust
Security or a beneficial interest therein the Holder of, and any Person that
acquires a beneficial interest in, such Trust Security intend and agree to treat
the Issuer Trust as a grantor trust for United States federal, state and local
tax purposes, and to treat the Trust Securities (including but not limited to
all payments and proceeds with respect to such Trust Securities) as undivided
beneficial ownership interests in the Trust Property (and payments and proceeds
therefrom, respectively) for United States federal, state and local tax
purposes. The provisions of this Declaration of Trust shall be interpreted to
further this intention and agreement of the parties.
SECTION 10.3. Amendment. (a) This Declaration of Trust may be
amended from time to time by the Property Trustee and the Holder of all the
Common Securities, without the consent of any Holder of the Preferred
Securities, (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 of Trust, which shall not be inconsistent with the other provisions
of this Declaration of Trust, or (ii) to modify, eliminate or add to any
provisions of this Declaration of Trust to such extent as shall be necessary to
ensure that the Issuer Trust will not be taxable as a corporation or will be
classified as other than a grantor trust for United States federal income tax
purposes at all times that any Trust Securities are Outstanding or to ensure
that the Debentures are treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes, or to ensure that the Issuer Trust
will not be required to register as an "investment company" under the Investment
Company Act; provided, however, that in the case of either clauses (i) or (ii)
such action shall not adversely affect in any material respect the interests of
any Holder and does not become effective until notice of the amendment is given
to the Holders of Outstanding Preferred Securities.
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(b) Except as provided in Section 10.3(c) hereof, any
provision of this Declaration of Trust may be amended by the Property Trustee,
the Delaware Trustee and the Holder of all of the Common Securities and with (i)
the consent of Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, and (ii) receipt by the Issuer Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Issuer Trustees or the Administrators in accordance with such amendment
will not cause the Issuer Trust to be taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes or
affect the treatment of the Debentures as indebtedness of the Debenture Issuer
for United States federal income tax purposes or affect the Issuer Trust's
exemption from status as an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in
this Declaration of Trust, without the consent of each affected Holder, this
Declaration of Trust may not be amended to (i) change the amount or timing of
any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date, or (ii) restrict the right of a Holder to
institute suit for the enforcement of any such payment on or after such date;
and notwithstanding any other provision herein, without the unanimous consent of
the Holders, this paragraph (c) of this Section 10.3 may not be amended.
(d) Notwithstanding any other provisions of this Declaration
of Trust, no Issuer Trustee shall enter into or consent to any amendment to this
Declaration of Trust that would cause the Issuer Trust in the Opinion of
Counsel, to fail or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act or to be taxable as a
corporation or to be classified as other than a grantor trust for United States
federal income tax purposes or that would cause the Debentures to fail or cease
to be treated as indebtedness of the Debenture Issuer for United States federal
income tax purposes.
(e) Notwithstanding anything in this Declaration of Trust to
the contrary, without the consent of the Depositor and the Administrators, this
Declaration of Trust may not be amended in a manner that imposes any additional
obligation on the Depositor or the Administrators.
(f) If any amendment to this Declaration of Trust is made, the
Administrators or the Property Trustee shall promptly provide to the Depositor a
copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Declaration of Trust that
affects its own rights, duties or immunities under this Declaration of Trust.
The Property Trustee shall be provided with an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Declaration of Trust is
in compliance with this Declaration of Trust and all conditions precedent herein
provided for relating to such action have been met.
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SECTION 10.4. Separability. If any provision in this
Declaration of Trust or in the 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 10.5. Governing Law. THIS DECLARATION OF TRUST AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR,
THE ISSUER TRUSTEES AND THE ADMINISTRATORS WITH RESPECT TO THIS DECLARATION OF
TRUST AND THE TRUST SECURITIES SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS, REMEDIES AND
OBLIGATIONS 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 ANY OF THE
AFOREMENTIONED PARTIES OR THIS DECLARATION OF TRUST OR THE TRUST SECURITIES 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, 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 OF TRUST. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE SHALL
NOT APPLY TO THE ISSUER TRUST.
SECTION 10.6. Payments Due on Non-Business Day. If the date
fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not be made on such date but may be made on
the next succeeding day that is a Business Day (except as otherwise provided in
Sections 4.1(a) and 4.2(d)), with the same force and effect as though made on
the date fixed for such payment, and no Distributions shall accumulate on such
unpaid amount for the period after such date.
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SECTION 10.7. Successors. This Declaration of Trust shall be
binding upon and shall inure to the benefit of any successor to the Depositor,
the Issuer Trust, the Administrators and any Issuer Trustee, including any
successor by operation of law. Except in connection with a consolidation, merger
or sale involving the Depositor that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
SECTION 10.8. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Declaration
of Trust.
SECTION 10.9. Reports, Notices and Demands. Any report,
notice, demand or other communication that by any provision of this Declaration
of Trust is required or permitted to be given or served to or upon any Holder or
the Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case addressed (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder's name and address may appear on the
Securities Register; and (b) in the case of the Holder of all the Common
Securities or the Depositor, to Citadel Communications Corporation, City Center
West, Suite 400, 7201 West Lake Mead Boulevard, Las Vegas, Nevada 89128
Attention: Secretary, facsimile no.: [ ], or to such other address as may be
specified in a written notice by the Holder of all the Common Securities or the
Depositor, as the case may be, to the Property Trustee. Such notice, demand or
other communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission. Such notice, demand or other communication to or upon the
Depositor shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Depositor.
Any notice, demand or other communication that by any
provision of this Declaration of Trust is required or permitted to be given or
served to or upon the Issuer Trust, the Property Trustee, the Delaware Trustee,
the Administrators or the Trust shall be given in writing by deposit thereof,
first-class postage prepaid, in the U.S. mail, hand delivery or facsimile
transmission, addressed to such Person as follows: (a) with respect to the
Property Trustee to The Bank of New York, 101 Barclay Street, Floor 21 West, New
York, New York 10286; Attention: Corporate Trust Administration, facsimile no.:
(212) 815-5915; (b) with respect to the Delaware Trustee, to The Bank of New
York (Delaware), [ ], Attention: [ ]; (c) with respect to the Administrators, to
them at the address above for notices to the Depositor, marked "Attention:
Administrators of CCC Capital Trust I"; and (d) with respect to the Issuer
Trust, to its principal office specified in Section 2.2, with a copy to the
Property Trustee. Such notice, demand or other communication to or upon the
Issuer Trust, the Property Trustee or the Administrators shall be deemed to have
been sufficiently given or made only upon actual receipt of the writing by the
Issuer Trust, the Property Trustee or such Administrator.
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SECTION 10.10. Agreement Not to Petition. Each of the Issuer
Trustees and the Depositor agree for the benefit of the Holders that, until at
least one year and one day after the Issuer Trust has been terminated in
accordance with Article IX, they shall not file, or join in the filing of, a
petition against the Issuer Trust under any bankruptcy, insolvency,
reorganization or other similar law (including the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Issuer Trust under any Bankruptcy Law. If the
Depositor takes action in violation of this Section 10.10, the Property Trustee
agrees, for the benefit of Holders, that at the expense of the Depositor, it
shall file an answer with the bankruptcy court or otherwise properly contest the
filing of such petition by the Depositor against the Issuer Trust or the
commencement of such action and raise the defense that the Depositor has agreed
in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Issuer Trustee or
the Issuer Trust may assert.
SECTION 10.11. Trust Indenture Act; Conflict with Trust
Indenture Act. (a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of Trust
and shall, to the extent applicable, be governed by such provisions of the Trust
Indenture Act.
(b) The Property Trustee shall be the only Issuer Trustee that
is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof, such imposed duties
shall control. If any provision of this Declaration of Trust 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 of
Trust as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Declaration of Trust shall not affect the nature of the Trust Securities as
equity securities representing undivided beneficial interests in the assets of
the Issuer Trust.
SECTION 10.12. Acceptance of Terms of Declaration of Trust,
Guarantee Agreement and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST
SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS DECLARATION OF TRUST, THE GUARANTEE AGREEMENT AND THE INDENTURE, AND
AGREEMENT TO THE SUBORDINATION PROVISIONS, THE TAX TREATMENT PROVISION AND OTHER
TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND
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SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS
THAT THE TERMS AND PROVISIONS OF THIS DECLARATION OF TRUST SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH
OTHERS.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Amended and Restated Declaration of Trust as of the day and year first above
written.
Citadel Communications Corporation, as Depositor
By: ____________________________________
Name:
Title:
THE BANK OF NEW YORK, as Property Trustee
By: ____________________________________
Name:
Title: Vice President
THE BANK OF NEW YORK (DELAWARE), as
Delaware Trustee
By: ____________________________________
Name:
Title: Vice President
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Exhibit A
CERTIFICATE OF TRUST OF
CCC CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF CCC CAPITAL TRUST I (the "Trust"), dated
December 3, 1999, is being duly executed and filed by the undersigned trustees
for the purposes of organizing a business trust pursuant to the Delaware
Business Trust Act (12 Del. C. Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is CCC Capital
Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with its principal place of business in the State of Delaware is The
Bank of New York (Delaware), Route 273, 110 White Clay Center, Newark, Delaware
19711.
3, Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By:_______________________________________
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity but solely as
trustee of the Trust
By:_______________________________________
Name:
Title:
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Exhibit B
[FORM OF LETTER OF REPRESENTATIONS]
[ ] __, 1999
The Depository Trust and Clearing Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: CCC Capital Trust I ___% Preferred Securities,
Series A CUSP No. _____________
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters
relating to the issuance and deposit with The Depository Trust and Clearing
Company ("DTC"). All will book entry ____% Preferred Securities, Series A (the
"Preferred Securities"), of CCC Capital Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Issuer"), governed by the
Amended and Restated Declaration of Trust, dated as of [ ] __, 1999 (the
"Amended and Restated Declaration of Trust"), between Citadel Communications
Corporation, (the "Corporation"), as Depositor, The Bank of New York, as
Property Trustee, The Bank of New York (Delaware), as Delaware Trustee and
Several Holders as defined therein. The payment of distributions on the
Preferred Securities and payments due upon liquidation of the Issuer or
redemption of the Preferred Securities, to the extent the Issuer has funds
available for the payment thereof, are guaranteed by the Corporation to the
extent set forth in a Guarantee Agreement, dated as of [ ] __, 1999, between the
Corporation and The Bank of New York, as Guarantee Trustee with respect to the
Preferred Securities. The Corporation and the Issuer propose to sell the
Preferred Securities to the Underwriters (the "Underwriters") pursuant to a
Pricing Agreement, dated as of [ ] __, 1999, by and among the Underwriters, the
Issuer and the Corporation, and the Underwriting Agreement, dated as of [ ] __,
1999, by and among the Underwriters, the Issuer and the Corporation, and the
Underwriters wish to take delivery of the Preferred Securities through DTC. The
Bank of New York is acting as transfer agent and registrar with respect to the
Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible
for deposit at DTC, and to act in accordance with DTC's rules with respect to
the Preferred Securities, the Issuer and the Transfer Agent and Registrar make
the following representations to DTC:
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1. Prior to the closing of the sale of the Preferred
Securities to the Underwriters on [ ] __, 1999, there shall be deposited with,
or held by the Transfer Agent and Registrar as custodian for, DTC one or more
global certificates (individually and collectively, the "Global Certificate")
registered in the name of DTC's nominee, Cede & Co., representing an aggregate
of $________ Preferred Securities and bearing the following legend:
Unless this certificate is presented by an authorized
representative of The Depository Trust and Clearing Company, a
New York corporation ("DTC"), to Issuer or its agent for
registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
2. The Amended and Restated Declaration of Trust of the Issuer
provides for the voting by holders (with no provision for revocation of consents
or votes by subsequent holders) of the Preferred Securities under certain
limited circumstances. The Issuer shall establish a record date for such
purposes and shall, to the extent possible, give DTC notice of such record date
not less than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion,
recapitalization, reorganization or any other similar transaction resulting in
the cancellation of all or any part of the Series A Preferred Securities
outstanding, the Issuer or the Transfer Agent and Registrar shall send DTC a
notice of such event as soon as possible but, at least 5 business days prior to
the effective date of such event.
4. In the event of any distribution on, or an offering or
issuance of rights with respect to, the Preferred Securities outstanding, the
Issuer or the Transfer Agent and Registrar shall send DTC a notice specifying:
(a) the amount of and conditions, if any, applicable to the payment of any such
distribution or any such offering or issuance of rights; (b) any applicable
expiration or deadline date, or any date by which any action on the part of the
holders of Preferred Securities is required; and (c) the date any required
notice is to be mailed by or on behalf of the Issuer to holders of Preferred
Securities or published by or on behalf of the Issuer (whether by mail or
publication, the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before the
Publication Date. The Issuer or the Transfer Agent and Registrar will forward
such notice either in a separate secure transmission for each CUSP number or in
a secure transmission of multiple CUSP numbers (if applicable) that includes a
manifest or list of each CUSP number submitted in that transmission. (The party
sending such
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notice shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212)
709-1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust and Clearing Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm
DTC's receipt of such telecopy by telephoning the Dividend Department at (212)
709-1270.
5. In the event of a redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC not less than 30 calendar days prior to such event by a secure
means in the manner set forth in paragraph 4. Such redemption notice shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notice shall be confirmed by telephoning (516) 227-4070.
Notice by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust and Clearing Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred
Securities, notice specifying the terms of the tender and the Publication Date
of such notice shall be sent by the Issuer or the Transfer Agent and Registrar
to DTC by a secure means and in a timely manner as described in paragraph 4.
Notices to DTC pursuant to this paragraph and notices of other corporate actions
(including mandatory tenders, exchanges and capital changes), shall be sent,
unless notification to another department is expressly provided for herein, by
telecopy to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094
and receipt of such notice shall be confirmed by telephoning (212) 709-6884, or
by mail or any other means to:
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Manager, Reorganization Department
Reorganization Window
The Depository Trust and Clearing Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain
the CUSP number or numbers of the Preferred Securities and the accompanying
designation of the Preferred Securities, which, as of the date of this letter,
is "CCC Capital Trust I, ___% Preferred Securities. Series A".
8. Distribution payments or other cash payments with respect
to the Preferred Securities shall be governed by DTC's current Principal and
Income Payments Rider, a copy of which is attached hereto as Annex I. For
purposes of this letter, the term "Agent" used in Annex I shall be deemed to
refer to The Bank of New York or any successor Property Trustee under the
Amended and Restated Declaration of Trust.
9. DTC may direct the Issuer and the Transfer Agent and
Registrar to use any other telecopy number or address of DTC as the number or
address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other
similar transaction (e.g., tender made and accepted in response to the Issuer's
or the Transfer Agent and Registrar's invitation) necessitating a reduction in
the aggregate number of Preferred Securities outstanding evidenced by the Global
Certificate, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities
depositary with respect to the Preferred Securities at any time by giving
reasonable prior written notice to the Issuer and the Transfer Agent and
Registrar (at which time DTC will confirm with the Issuer or the Transfer Agent
and Registrar the aggregate number of Preferred Securities deposited with it)
and discharging its responsibilities with respect thereto under applicable law.
Under such circumstances, the Issuer may determine to make alternative
arrangements for book-entry settlement for the Preferred Securities, make
available one or more separate global certificates evidencing Preferred
Securities to any Participant having Preferred Securities credited to its DTC
account, or issue definitive Preferred Securities to the beneficial holders
thereof, and in any such case, DTC agrees to cooperate fully with the Issuer and
the Transfer Agent and Registrar and to return the Global Certificate, duly
endorsed for transfer as directed by the Issuer or the Transfer Agent and
Registrar, together with any other documents of transfer reasonably requested by
the Issuer or the Transfer Agent and Registrar.
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12. In the event that the Issuer determines that beneficial
owners of Preferred Securities shall be able to obtain definitive Preferred
Securities, the Issuer or the Transfer Agent and Registrar shall notify DTC of
the availability of certificates. In such event, the Issuer or the Transfer
Agent and Registrar shall issue, transfer and exchange certificates in
appropriate amounts, as required by DTC and others, and DTC agrees to cooperate
fully with the Issuer and the Transfer Agent and Registrar and to return the
Global Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Nothing herein shall be deemed to require the Transfer Agent
and Registrar to advance funds on behalf of CCC Capital Trust I.
Very truly yours,
CCC Capital Trust I
(As Issuer)
By: _____________________________________
Administrator
THE BANK OF NEW YORK
(As Transfer Agent and Registrar)
By: _____________________________________
Administrator
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By: _____________________________________
Authorized Officer
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Exhibit C
[FORM OF COMMON SECURITIES CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE DECLARATION OF TRUST
AND ONLY IN CONNECTION WITH A SIMULTANEOUS DELEGATION AND
ASSIGNMENT OF THE EXPENSE AGREEMENT REFERRED TO THEREIN
Certificate Number Number of Common Securities
C-
Certificate Evidencing Common Securities
of
CCC Capital Trust I
___% Common Securities
(liquidation amount $___ per Common Security)
CCC Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
[NAME OF HOLDER] (the "Holder") is the registered owner of common securities of
the Issuer Trust representing undivided beneficial interests in the assets of
the Issuer Trust and designated the ___% Common Securities (liquidation amount
$___ per Common Security) (the "Common Securities"). Except in accordance with
Section 5.11 of the Declaration of Trust (as defined below) the Common
Securities are not transferable and any attempted transfer hereof other than in
accordance therewith shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Declaration of Trust of the Issuer
Trust, dated as of [ ], 1999, as the same may be amended from time to time (the
"Declaration of Trust"), among Citadel Communications Corporation, as Depositor,
The Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, and the Holders of Trust Securities. The Issuer Trust will
furnish a copy of the Declaration of Trust to the Holder without charge upon
written request to the Issuer Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
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76
This Common Securities Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware.
Terms used but not defined herein have the meanings set forth
in the Declaration of Trust.
IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this __ day of [ ], 1999.
CCC Capital Trust I
By: _____________________________________
Administrator
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77
Exhibit D
[FORM OF EXPENSE AGREEMENT]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ],
1999, between Citadel Communications Corporation, a Nevada Corporation, as
holder of the Common Securities and issuer of Debentures (the "Corporation"),
and CCC Capital Trust I, a Delaware business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common
Securities (the "Common Securities") to and acquire Debentures from the
Depositor or the Subsidiary and to issue and sell ____% Preferred Securities
(the "Preferred Securities") with such powers, preferences and special rights
and restrictions as are set forth in the Amended and Restated Declaration of
Trust, dated as of [ ], 1999, among Citadel Communications Corporation, as
Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and the Holders of Trust Securities, as the
same may be amended from time to time (the "Declaration of Trust");
WHEREAS, the Corporation will directly or indirectly own all
of the Common Securities of the Issuer Trust and will issue the Debentures;
WHEREAS, the Depositor or Subsidiary will issue the Debentures
to the Issuer Trust;
WHEREAS, capitalized terms used but not defined herein have
the meanings set forth in the Declaration of Trust;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by the Corporation. The Corporation
hereby agrees to assume any and all Obligations (as hereinafter defined) of the
Issuer Trust and, in the event any such Obligation is not so assumed, subject to
the terms and conditions hereof, the Corporation hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Issuer Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries") the full
payment, when and as due, of any and all Obligations (as hereinafter defined) to
such Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities (but not including liabilities relating to taxes) of the Issuer
Trust, other than obligations of the Issuer Trust to pay to holders of
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any Trust Securities the amounts due such holders pursuant to the terms of the
Trust Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and
other liabilities and obligations of the Corporation under this Agreement shall
constitute unsecured obligations of the Corporation and shall rank subordinate
and junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Corporation [to the extent and in the manner set forth in the
Indenture with respect to the Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the
Corporation hereunder]. The obligations of the Corporation hereunder do not
constitute Senior Indebtedness (as defined in the Indenture) of the Corporation.
SECTION 1.3. Term of Agreement. This Agreement 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 the Debentures shall have been distributed
to the Holders of the Trust Securities as provided in Article IX of the
Declaration of Trust; provided, however, that this Agreement shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Corporation and The Bank of New
York, as guarantee trustee, or under this Agreement for any reason whatsoever.
This Agreement is continuing, irrevocable, unconditional and absolute.
SECTION 1.4. Waiver of Notice. The Corporation hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants,
agreements and duties of the Corporation under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Issuer Trust
of all or any portion of the Obligations or for the performance of any
other obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Issuer Trust
granting indulgence or extension of any kind; or
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79
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer Trust or any of the assets of the Issuer Trust
(other than the dissolution of the Trust in accordance with the terms
thereof).
There shall be no obligation of the Beneficiaries to give
notice to, or obtain the consent of, the Corporation with respect to the
happening of any of the foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this
Agreement directly against the Corporation and the Corporation waives any right
or remedy to require that any action be brought against the Issuer Trust or any
other person or entity before proceeding against the Corporation.
SECTION 1.7. Subrogation. The Corporation shall be subrogated
to all rights (if any) of any Beneficiary against the Issuer Trust in respect of
any amounts paid to the Beneficiaries by the Corporation under this Agreement;
provided, however, that the Corporation shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Agreement, if,
at the time of any such payment, any amounts are due and unpaid under this
Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by
either party hereto without the consent of the other, and any purported
assignment without such consent shall be void; provided, however, that, upon any
transfer of the Common Securities, this Agreement shall be assigned and
delegated by the Corporation to its successor with such transfer without any
action by either party hereto.
SECTION 2.2. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Corporation and shall inure to the benefit
of the Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any
Beneficiary or any Preferred Securities are outstanding, this Agreement shall
not be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities without the consent of such Beneficiary or
the holders of the Preferred Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
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addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex):
CCC Capital Trust I
c/o The Bank of New York
[ ]
[ ]
[ ]
Facsimile No.: [ ]
Attention: Corporate Trust and Agency Services
With a copy to:
Citadel Communications Corporation
City Center West, Suite 400
7201 West Lake Mead Boulevard
Las Vegas, Nevada 89128
Facsimile No.: ______________
Attention: Secretary
SECTION 2.5. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
THIS AGREEMENT is executed as of the day and year first above
written.
CITADEL COMMUNICATIONS
CORPORATION
By: __________________________________
Name:
Title:
CCC Capital Trust I
By: __________________________________
Name:
Title: Administrator
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Exhibit E
[FORM OF PREFERRED SECURITIES CERTIFICATE]
[IF THE PREFERRED SECURITIES CERTIFICATE IS TO BE EVIDENCED BY
A GLOBAL CAPITAL SECURITY, INSERT--THIS PREFERRED SECURITIES CERTIFICATE IS A
GLOBAL PREFERRED SECURITY WITHIN THE MEANING OF THE DECLARATION OF TRUST
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS PREFERRED SECURITIES CERTIFICATE IS EXCHANGEABLE
FOR PREFERRED SECURITIES CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE DECLARATION OF TRUST AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION OF TRUST.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST AND CLEARING COMPANY, A NEW
YORK CORPORATION ("DTC"), TO CCC CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
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Certificate Number Number of Preferred Security
CAI-
CUSIP NO.
___________________
Certificate Evidencing Preferred Security
of
CCC Capital Trust I
____% Preferred Security, Series A
(liquidation amount $___ per Preferred Security)
CCC Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Issuer Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of___________________( )__
Preferred Security of the Trust representing an undivided preferred beneficial
interest in the assets of the Trust and designated the CCC Capital __ ____%
Preferred Security, Series A (liquidation amount $__ per Preferred Security)
(the "Preferred Security"). The Preferred Security are transferable on the books
and records of the Issuer 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 5.5 of the Declaration of Trust (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Security are set forth in, and this certificate and
the Preferred Security 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 Issuer Trust, dated as of [ ], 1999, as the same may be
amended from time to time (the "Declaration of Trust"), among Citadel
Communications Corporation, as Depositor, The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, and the Holders
of Trust Securities, including the designation of the terms of the Preferred
Security as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Citadel Communications Corporation, a Nevada
corporation, and The Bank of New York, as Guarantee Trustee, dated as of [ ],
1999 (the "Guarantee Agreement"), to the extent provided therein. The Trust will
furnish a copy of the Issuer Declaration of Trust and the Guarantee Agreement to
the Holder without charge upon written request to the Property Trustee at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
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This Preferred Security Certificate shall be governed by and
construed in accordance with the laws of the State of Delaware.
All capitalized terms used but not defined in this Preferred
Security Certificate are used with the meanings specified in the Declaration of
Trust, including the Exhibits thereto.
IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this __ day of [ ], 1999.
CCC Capital Trust I
By: ______________________________________
Name:
Title: Administrator
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Issuer
Trust. The agent may substitute another to act for him or her.
Date: ________________________
Signature: _____________________________________________________________________
(Sign exactly as your name appears on the other side of this
Preferred Security Certificate)
The signature(s) should be guaranteed by an institution which is a member of one
of the following recognized signature guarantee programs:
(1) The Securities Transfer Agents Medallion Program (STAMP)
(2) The New York Stock Exchange Medallion Stamp Program (MSP); or
(3) The Stock Exchange Medallion Program (SEMP).
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