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EXHIBIT 4.2
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AMENDED AND RESTATED
DECLARATION OF TRUST
AMONG
SUIZA FOODS CORPORATION
AS DEPOSITOR,
WILMINGTON TRUST COMPANY
AS PROPERTY TRUSTEE,
WILMINGTON TRUST COMPANY
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF MARCH 24, 1998
SUIZA CAPITAL TRUST II
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SUIZA CAPITAL TRUST II*
Certain Sections of this Declaration
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE DECLARATION
ACT SECTION SECTION
Section 310 (a) (1) ......................................................... 8.7
(a) (2) ......................................................... 8.7
(a) (4) ......................................................... 2.7(a)(ii)
(b) ......................................................... 8.8
Section 311 (a) ......................................................... 8.12
(b) ......................................................... 8.12
Section 312 (a) ......................................................... 5.7
(b) ......................................................... 5.7
(c) ......................................................... 5.7
Section 313 (a) ......................................................... 8.13(a)
(c) ......................................................... 10.8
(d) ......................................................... 8.13(c)
(a) (4) ......................................................... 8.13(b)
(b) ......................................................... 8.13(b)
Section 314 (a) ......................................................... 8.14
(b) ......................................................... Not Applicable
(c) (1) ......................................................... 8.15
(c) (2) ......................................................... 8.15
(c) (3) ......................................................... Not Applicable
(d) ......................................................... Not Applicable
(e) ......................................................... 1.1, 8.15
Section 315 (a) ......................................................... 8.1(a), 8.3(a)
(b) ......................................................... 8.2, 10.8
(c) ......................................................... 8.1(a)
(d) ......................................................... 8.1, 8.3
(e) ......................................................... Not Applicable
Section 316 (a) ......................................................... Not Applicable
(a) (1)(A) ......................................................... Not Applicable
(a) (1)(B) ......................................................... Not Applicable
(a) (2) ......................................................... Not Applicable
(b) ......................................................... Not Applicable
(c) ......................................................... 6.7
Section 317 (a) (1) ......................................................... Not Applicable
(b) ......................................................... 5.9
Section 318 (a) ......................................................... 10.10
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* Note: This reconciliation and tie sheet shall not, for any purpose,
be deemed to be a part of the Declaration.
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TABLE OF CONTENTS
PAGE
ARTICLE 1 - DEFINED TERMS.........................................................................................1
SECTION 1.1. Definitions........................................................................1
ARTICLE 2 - ESTABLISHMENT OF THE TRUST...........................................................................13
SECTION 2.1. Name..............................................................................13
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.......................13
SECTION 2.3. Organizational Expenses...........................................................13
SECTION 2.4. Issuance of the Preferred Securities..............................................13
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of
the Common Securities.............................................................14
SECTION 2.6. Declaration of Trust; Intent Clause...............................................14
SECTION 2.7. Authorization to Enter into Certain Transactions..................................14
SECTION 2.8. Assets of Trust...................................................................19
SECTION 2.9. Title to Trust Property...........................................................19
ARTICLE 3 - PROPERTY ACCOUNT.....................................................................................19
SECTION 3.1. Property Account..................................................................19
ARTICLE 4 - DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION......................................................20
SECTION 4.1. Distributions.....................................................................20
SECTION 4.2. Redemption........................................................................20
SECTION 4.3. Conversion........................................................................23
SECTION 4.4. Special Event Exchange or Redemption..............................................25
SECTION 4.5. Subordination of Common Securities................................................27
SECTION 4.6. Payment Procedures................................................................27
SECTION 4.7. Tax Returns and Reports...........................................................27
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust.......................................28
SECTION 4.9. Payments under Indenture..........................................................28
ARTICLE 5 - TRUST SECURITIES CERTIFICATES........................................................................28
SECTION 5.1. Initial Ownership.................................................................28
SECTION 5.2. The Trust Securities Certificates.................................................28
SECTION 5.3. Delivery of Trust Securities Certificates.........................................29
SECTION 5.4. Registration of Transfer and Exchange of
Preferred Securities; Restrictions on Transfer....................................29
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates................31
SECTION 5.6. Persons Deemed Securityholders....................................................32
SECTION 5.7. Access to List of Securityholders' Names and Addresses............................32
SECTION 5.8. Maintenance of Office or Agency...................................................32
SECTION 5.9. Appointment of Paying Agent.......................................................32
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SECTION 5.10. Ownership of Common Securities by Depositor.......................................33
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate............................................................33
SECTION 5.12. Notices to Clearing Agency........................................................34
SECTION 5.13. Definitive Preferred Securities Certificates......................................35
SECTION 5.14. Rights of Securityholders.........................................................35
SECTION 5.15. Restrictive Legends...............................................................35
ARTICLE 6 - ACT OF SECURITYHOLDERS; MEETINGS; VOTING; AMENDMENT
OF THE DECLARATION.............................................................................36
SECTION 6.1. Limitations on Voting Rights......................................................36
SECTION 6.2. Notice of Meetings................................................................39
SECTION 6.3. Meetings of Preferred Securityholders.............................................39
SECTION 6.4. Voting Rights.....................................................................40
SECTION 6.5. Proxies, Etc......................................................................40
SECTION 6.6. Securityholder Action by Written Consent..........................................40
SECTION 6.7. Record Date for Voting and Other Purposes.........................................40
SECTION 6.8. Acts of Securityholders...........................................................40
SECTION 6.9. Inspection of Records.............................................................42
ARTICLE 7 - REPRESENTATIONS AND WARRANTIES.......................................................................42
SECTION 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee..............................................................42
SECTION 7.2. Representations and Warranties of Depositor.......................................43
ARTICLE 8 - THE TRUSTEES.........................................................................................44
SECTION 8.1. Certain Duties and Responsibilities...............................................44
SECTION 8.2. Notice of Defaults................................................................46
SECTION 8.3. Certain Rights of Property Trustee................................................48
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities............................51
SECTION 8.5. May Hold Securities...............................................................51
SECTION 8.6. Compensation; Indemnity; Fees.....................................................51
SECTION 8.7. Property Trustee Required; Eligibility of Trustees................................52
SECTION 8.8. Disqualification: Conflicting Interest...........................................52
SECTION 8.9. Resignation and Removal; Appointment of Successor.................................53
SECTION 8.10. Acceptance of Appointment by Successor............................................54
SECTION 8.11. Merger, Conversion, Consolidation or Succession to Business.......................55
SECTION 8.12. Preferential Collection of Claims Against Depositor or Trust......................55
SECTION 8.13. Reports by Property Trustee.......................................................56
SECTION 8.14. Reports to the Property Trustee...................................................56
SECTION 8.15. Evidence of Compliance with Conditions Precedent..................................56
SECTION 8.16. Number of Trustees................................................................57
SECTION 8.17. Delegation of Power...............................................................57
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ARTICLE 9 - DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER.....................................................57
SECTION 9.1. Dissolution upon Expiration Date..................................................57
SECTION 9.2. Early Dissolution.................................................................57
SECTION 9.3. Termination.......................................................................58
SECTION 9.4. Liquidation.......................................................................58
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust.........................................................60
ARTICLE 10 - MISCELLANEOUS PROVISIONS............................................................................61
SECTION 10.1. Limitation of Rights of Securityholders...........................................61
SECTION 10.2. Amendment.........................................................................61
SECTION 10.3. Separability......................................................................61
SECTION 10.4. GOVERNING LAW.....................................................................61
SECTION 10.5. Payments Due on Non-Business Day..................................................62
SECTION 10.6. Successors........................................................................62
SECTION 10.7. Headings..........................................................................62
SECTION 10.8. Reports, Notices and Demands......................................................62
SECTION 10.9. Agreement Not to Petition.........................................................63
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act............................63
SECTION 10.11. ACCEPTANCE OF TERMS OF DECLARATION,
GUARANTEE AND INDENTURE...........................................................64
SECTION 10.12. Counterparts......................................................................64
ARTICLE 11 - REGISTRATION RIGHTS.................................................................................64
SECTION 11.1. Registration Rights...............................................................64
EXHIBIT A: The Certificate of Trust
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AMENDED AND RESTATED DECLARATION OF TRUST, dated as of March 24, 1998
among (i) Suiza Foods Corporation, a Delaware corporation (including any
successors or assigns, the "DEPOSITOR"), (ii) Wilmington Trust Company, a
Delaware banking corporation, as property trustee (in such capacity, the
"PROPERTY TRUSTEE" and, in its personal capacity and not in its capacity as
Property Trustee, the "BANK"), (iii) Wilmington Trust Company, a Delaware
banking corporation, as Delaware trustee (in such capacity, the "DELAWARE
TRUSTEE"), (iv) Tracy L. Noll, an individual, J. Michael Lewis, an individual,
and Joseph B. Armes, an individual, each of whose address is c/o Suiza Foods
Corporation, 3811 Turtle Creek Boulevard, Dallas, Texas 75219, (each, an
"ADMINISTRATIVE TRUSTEE" and, collectively, the "ADMINISTRATIVE TRUSTEES" and,
collectively with the Property Trustee and Delaware Trustee, the "TRUSTEES") and
(v) the several Holders as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Declaration of Trust, dated as of
March 18, 1998 (the "ORIGINAL DECLARATION"), and by the execution and filing by
certain of the Trustees with the Secretary of State of the State of Delaware of
the Certificate of Trust, filed on March 18, 1998 (the "CERTIFICATE OF TRUST"),
attached as Exhibit A, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in the Debentures (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Declaration in its entirety as set forth herein to provide for, among
other things, (i) the issuance and sale of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement and (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures;
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other party and
for the benefit of the Holders of the Preferred Securities, hereby amends and
restates the Original Declaration in its entirety and agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Declaration,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
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(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Declaration;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration as a whole and not to any particular
Article, Section or other subdivision;
(e) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles," with respect to any
computation required or permitted hereunder, shall mean such accounting
principles which are generally accepted at the date or time of such computation;
(f) "or" is not exclusive;
(g) provisions apply to successive events and transactions; and
(h) each reference herein to a rule or form of the Commission shall
mean such rule or form and any rule or form successor thereto, in each case as
amended from time to time.
"ACT" has the meaning specified in Section 6.8.
"ADDITIONAL AMOUNT" means, with respect to the Trust Securities, the
amount of Additional Interest (as defined in the Indenture) paid and identified
as such to the Property Trustee or other holders of the Debentures by the
Depositor on the Debentures.
"ADDITIONAL SUMS" means, with respect to the Trust Securities, the
amount of Additional Sums (as defined in the Indenture) paid and identified as
such to the Property Trustee or other holders of the Debentures by the Depositor
on the Debentures.
"ADMINISTRATIVE TRUSTEE" means each of Tracy L. Noll, J. Michael Lewis
and Joseph B. Armes, each solely in his capacity as Administrative Trustee of
the Trust formed and continued hereunder and not in his individual capacity, or
such Administrative Trustee's successor in interest in such capacity, or any
successor in interest in such capacity, or any successor administrative trustee
appointed as herein provided.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Depositor shall not be deemed to include the Trust. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
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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 Rule 144A Global Certificate or beneficial interest
therein, the rules and procedures of the Clearing Agency for such security, in
each case to the extent applicable to such transaction and as in effect from
time to time.
"BANK" has the meaning specified in the preamble to this Declaration.
"BANKRUPTCY EVENT" means, with respect to any Person:
(a) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of such Person in an
involuntary case or proceeding under United States bankruptcy laws, as
now or hereafter constituted, or any other applicable federal, state or
foreign bankruptcy, insolvency, or other similar law or (ii) a decree
or order adjudging such Person a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjudication or composition of, or in respect of, such Person under any
United States bankruptcy laws, as now or hereafter constituted, or any
other applicable federal, state or foreign bankruptcy, insolvency, or
similar law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of such Person or of
any substantial part of such Person's property or assets, or ordering
the winding-up or liquidation of the affairs of such Person, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(b) (i) the commencement by such Person of a voluntary case or
proceeding under United States bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, state or foreign
bankruptcy, insolvency or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent; or (ii) the
consent by such Person to the entry of a decree or order for relief in
respect of such Person in an involuntary case or proceeding under
United States bankruptcy laws, as now or hereafter constituted, or any
other applicable federal, state or foreign bankruptcy, insolvency or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against such Person; or (iii) the filing
by such Person of a petition or answer or consent seeking
reorganization or relief under United States bankruptcy laws, as now or
hereafter constituted, or any other applicable federal, state or
foreign bankruptcy, insolvency or other similar law; or (iv) the
consent by such Person to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of such
Person or any substantial part of such Person's property or assets, or
the making by such Person of an assignment for the benefit of
creditors; or (v) the admission by such Person in writing of its
inability to pay its debts generally as they become due; or (vi) the
taking of corporate action by such Person in furtherance of any such
actions.
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"BANKRUPTCY LAWS" has the meaning specified in Section 10.9.
"BOARD OF DIRECTORS" means either the board of directors of the
Depositor or any committee of that board duly authorized to act hereunder.
"BOARD RESOLUTION" means a copy of the resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Board of Directors, or such committee of the 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 Property Trustee.
"BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"BUSINESS DAY" means any day other than a Saturday or Sunday, or 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 a day on which the Corporate Trust
Office or the corporate trust office of the Indenture Trustee, is closed for
business.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interest, participations, rights in or other equivalents (however designated) of
such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"CERTIFICATE DEPOSITARY AGREEMENT" means the letter agreement among the
Trust, the Depositor and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, as the same may be amended and supplemented from time to time.
"CERTIFICATE OF TRUST" has the meaning specified in the preamble to
this Declaration.
"CERTIFICATED PREFERRED SECURITY" has the meaning specified in
Section 5.2.
"CHANGE IN 1940 ACT LAW" has the meaning specified in the definition of
Investment Company Event.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
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"CLOSING DATE" means the first Time of Delivery (as defined in the
Purchase Agreement), which date is also the date of execution and delivery of
this Declaration.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"COMMON SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit B.
"COMMON SECURITY" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount with respect to the assets of the
Trust of $50 and having the rights provided therefor in this Declaration,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"COMMON STOCK" means common stock, par value $0.01 per share, of the
Depositor or shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Depositor and which are not
subject to redemption by the Depositor.
"CONVERSION AGENT" has the meaning specified in Section 4.3.
"CONVERSION DATE" has the meaning specified in Section 4.3.
"CONVERSION EXPIRATION DATE" means the close of business on the
Business Day prior to the maturity date of the Debentures, or in the case of
Preferred Securities called for redemption, the close of business on the
Business Day prior to the Debenture Redemption Date.
"CONVERSION PRICE" has the meaning specified in Section 4.3.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Property Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration.
"CURRENT MARKET PRICE", with respect to the Common Stock of the
Depositor, means for any day the last reported sale price, regular way, on such
day, or, if no sale takes place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in either case as reported on the
NYSE, or, if such Common Stock is not admitted to trading on the NYSE on such
day, on the principal national securities exchange or quotation system on which
such Common Stock is listed or admitted to trading, or, if not listed or
admitted to trading or quoted on any national securities exchange or quotation
system, the average closing bid and asked prices
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of such Common Stock in the over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or a similar generally
accepted reporting service, or, if not so available in such manner, as furnished
by any NASD member firm selected from time to time by the Board of Directors for
that purpose or, if not so available in such manner, as otherwise determined in
good faith by the Board of Directors.
"DEBENTURE EVENT OF DEFAULT" means an "Event of Default" as defined in
the Indenture.
"DEBENTURE REDEMPTION DATE" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption thereof under the
Indenture.
"DEBENTURES" means up to $618,556,750 aggregate principal amount of the
Depositor's 5 1/2% Convertible Subordinated Debentures due April 1, 2028 issued
or to be issued pursuant to the Indenture.
"DECLARATION" means this Amended and Restated Declaration of Trust, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Declaration, any such modification, amendment or supplement,
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern this Declaration and any such modification, amendment or supplement,
respectively.
"DEFINITIVE PREFERRED SECURITIES CERTIFICATES" means either or both (as
the context requires) of (a) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(b) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss.ss. 3801, et. seq., as it may be amended from
time to time.
"DELAWARE TRUSTEE" means the Person identified as the "Delaware
Trustee" in the preamble to this Declaration solely in its capacity as Delaware
Trustee of the Trust continued hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor Delaware trustee
appointed as herein provided.
"DEPOSITOR" has the meaning specified in the preamble to this
Declaration.
"DIRECT ACTION" has the meaning specified in Section 6.8.
"DISTRIBUTION DATE" has the meaning specified in Section 4.1(a).
"DISTRIBUTIONS" means amounts payable in respect of the Trust
Securities as provided in Section 4.1. Distributions include, but are not
limited to, Additional Sums, Additional Amounts and Liquidated Damages.
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"EARLY DISSOLUTION EVENT" has the meaning specified in Section 9.2.
"EVENT OF DEFAULT" means the occurrence of a Debenture Event of Default
"EXCHANGE NOTICE" has the meaning specified in Section 4.4(b).
"EXPIRATION DATE" has the meaning specified in Section 9.1.
"RULE 144A GLOBAL CERTIFICATE" means a Preferred Security that is
registered in the Securities Register in the name of a Clearing Agency or a
nominee thereof.
"GUARANTEE" means the Guarantee Agreement executed and delivered by the
Depositor and Wilmington Trust Company, a Delaware banking corporation, as
guarantee trustee, contemporaneously with the execution and delivery of this
Declaration, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register, such Person
being a beneficial owner within the meaning of the Delaware Business Trust Act.
"INDENTURE" means the Convertible Subordinated Indenture, dated as of
March 24, 1998 between the Depositor and the Indenture Trustee, as amended or
supplemented from time to time.
"INDENTURE TRUSTEE" means Wilmington Trust Company, a Delaware banking
corporation, as trustee under the Indenture, until a successor Indenture Trustee
shall have become such pursuant to the applicable provision of the Indenture,
and thereafter "Indenture Trustee" shall mean such successor trustee and shall
include each Person who is then a Indenture Trustee hereunder if at any time
there is more than one such Person.
"INVESTMENT COMPANY EVENT" means the receipt by the Property Trustee,
on behalf of the Trust, of an opinion of counsel, rendered by a law firm having
a recognized national tax and securities practice (which opinion shall not have
been rescinded by such law firm), to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), that there is more
than an insubstantial risk that the Trust is or will be considered an
"investment company" that is required to be registered under the 1940 Act, which
Change in 1940 Act Law becomes effective on or after March 18, 1998.
"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.
"LIQUIDATED DAMAGES" means, with respect to the Trust Securities, the
amount of Liquidated Damages (as defined in the Indenture) paid and identified
as such to the Property Trustee or other holders of the Debentures by the
Depositor on the Debentures.
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"LIQUIDATION AMOUNT" means an amount with respect to the assets
of the Trust equal to $50 per Trust Security.
"LIQUIDATION DATE" means each date on which Debentures or cash are to
be distributed to Holders of Trust Securities in connection with a termination
and liquidation of the Trust pursuant to Section 9.4(a).
"LIQUIDATION DISTRIBUTION" has the meaning specified in Section 9.4(d).
"1940 ACT" means the Investment Company Act of 1940, as amended, and
the rules and regulations promulgated thereunder.
"NOTICE OF CONVERSION" means the notice given by a holder of Preferred
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Preferred Security for Debentures and to convert such Debentures into
Common Stock on behalf of such holder. Such notice is substantially in the form
set forth in Exhibit E.
"NYSE" means the New York Stock Exchange.
"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, any Vice President, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary,
of the Depositor, and delivered to the Property Trustee. The officer signing an
Officer's Certificate given pursuant to Section 8.15 shall be the principal
executive, financial or accounting officer of the Depositor. Any Officer's
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Officer's
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officer's Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and who may be an
employee of any thereof, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel delivered
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with respect to compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that each individual signing the Opinion of
Counsel has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each individual in rendering
the Opinion of Counsel;
(c) a statement that each individual has made such examination
or investigation as is necessary to enable such individual to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
"OPTIONAL REDEMPTION PRICE" means, except as set forth below, with
respect to the Preferred Securities, the following percentages of the
Liquidation Amounts thereof, and accumulated and unpaid Distributions, if any,
to the date fixed for redemption if redeemed during the twelve-month period
commencing April 1 (April 2 in the case of 2001) in each of the following years
indicated:
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
2001 103.438% 2004 101.375%
2002 102.750 2005 100.688
2003 102.063 2008 and thereafter 100.000
In the event of a redemption of Trust Securities upon the occurrence of
a Tax Event, Trust Securities shall be redeemed at the Redemption Price.
In the event of a redemption of Trust Securities pursuant to Section
4.2(a), Trust Securities shall be redeemed as the redemption price specified
therein.
"ORIGINAL DECLARATION" has the meaning specified in the recitals to
this Declaration.
"OUTSTANDING" when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Declaration, except:
(a) Trust Securities theretofore canceled by the
Securities Registrar or delivered to the Securities Registrar for
cancellation or tendered for conversion;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for
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the Holders of such Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Declaration; and
(c) Trust Securities which have been paid or in exchange for
or in lieu of which other Trust Securities have been executed and
delivered pursuant to Section 5.5 unless proof satisfactory to the
Property Trustee is presented that any Preferred Securities are held by
Holders in whose hands such Preferred Securities are valid, binding and
legal obligations of the Trust.
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, any
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee 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 Trustees and/or any such Affiliate. Preferred Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Securities Registrar the
pledgee's right so to act with respect to such Preferred Securities and that the
pledgee is not the Depositor or any Affiliate of the Depositor.
"OWNER" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agent 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 Agent
(directly or indirectly, in accordance with the rules of such Clearing Agent).
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 5.9.
"PERSON" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof or other entity.
"PREFERRED SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
C.
"PREFERRED SECURITY" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount with respect to the assets of
the Trust of $50 and having the rights provided therefor in this Declaration,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
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"PROPERTY ACCOUNT" means a segregated non-interest bearing corporate
trust account maintained by the Property Trustee with the Bank (or any successor
appointed by the Property Trustee) in its trust department for the benefit of
the Holders of the Trust Securities in which all amounts paid in respect of the
Debentures will be held and from which the Property Trustee shall make payments
to the Securityholders in accordance with Section 4.1.
"PROPERTY TRUSTEE" means the Person identified as the "Property
Trustee" in the preamble to this Declaration solely in its capacity as Property
Trustee of the Trust heretofore formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of March
18, 1998 among the Trust, the Depositor and the Purchasers named therein.
"REDEMPTION DATE" means, with respect to any Trust Security to be
redeemed, each Debenture Redemption Date.
"REDEMPTION PRICE" means, with respect to any Trust Security, $50 per
Trust Security, plus accumulated and unpaid Distributions to the date of
redemption.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated March 24, 1998, among the Depositor, the Trust, and the
Purchasers named in the Purchase Agreement.
"RELEVANT RECORD DATE" has the meaning specified in Section 4.1(d).
"RELEVANT TRUSTEE" has the meaning specified in Section 8.9.
"RESPONSIBLE OFFICER" means any officer within the Corporate Trust
Office of the Property Trustee with direct responsibility for the administration
of this Declaration and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"RESTRICTED PERIOD" means, with respect to the Preferred Securities and
with respect to the Debentures or the Common Stock issuable on conversion of the
Preferred Securities, the one-year period, in either case following the last
original issue date of the Preferred Securities (including any Preferred
Securities issued to cover over-allotments).
"RESTRICTED SECURITIES" means all Preferred Securities required
pursuant to Section 5.4 to bear any Restricted Securities Legend. Such term
includes the Rule 144A Global Certificate and the Institutional Accredited
Investor Global Certificate.
"RESTRICTED SECURITIES CERTIFICATE" means a certificate substantially
in the form set forth in Exhibit D.
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"RESTRICTED SECURITIES LEGEND" has the meaning specified in Section
5.15(a).
"RULE 144A GLOBAL CERTIFICATE" has the meaning specified in Section
5.2.
"RULE 144A PREFERRED SECURITIES" has the meaning specified in Section
5.2.
"SECURITIES ACT LEGEND" means a Restricted Securities Legend or a
Regulation S Legend.
"SECURITIES REGISTER" and "SECURITIES REGISTRAR" have the respective
meanings specified in Section 5.4.
"SHELF REGISTRATION STATEMENT" means that certain shelf registration
statement to be filed with the Commission in accordance with the Registration
Rights Agreement.
"SPECIAL EVENT" means a Tax Event or an Investment Company Event.
"SUCCESSOR PROPERTY TRUSTEE" has the meaning specified in Section 8.9.
"SUCCESSOR DELAWARE TRUSTEE" has the meaning specified in Section 8.9.
"SUCCESSOR SECURITIES" has the meaning specified in Section 9.5.
"TAX EVENT" means the receipt by the Property Trustee, on behalf of the
Trust, of an opinion of counsel, rendered by a law firm having a national tax
and securities practice (which opinion shall not have been rescinded by such law
firm), to the effect that, as a result of 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 affecting taxation, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after March 18, 1998, there is more than an
insubstantial risk in each case after the date hereof that (i) the Trust is, or
will be within 90 days of the date thereof, subject to United States federal
income tax with respect to income received or accrued on the Debentures, (ii)
interest paid by the Depositor on the Debentures is not, or within 90 days of
the date thereof will not be, deductible by the Depositor when paid, in whole or
in part, for United States federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"TRUST" means the Delaware business trust continued hereby and
identified on the cover page of this Declaration.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture
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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 Property Account and (c) all proceeds and rights in respect of
the foregoing to be held by the Property Trustee pursuant to the terms of this
Declaration for the benefit of the Securityholders.
"TRUST SECURITY" means any one of the Common Securities or the
Preferred Securities.
"TRUST SECURITIES CERTIFICATE" means any one of the Common Securities
Certificates, the Rule 144A Global Certificates or the Certificated Preferred
Securities.
"TRUSTEES" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"UNRESTRICTED SECURITIES CERTIFICATE" means a certificate substantially
in the form set forth in Exhibit C, but without the Restricted Securities
Legend.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as "SUIZA
CAPITAL TRUST II", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business. The address of the Delaware Trustee in the State of Delaware is Rodney
Square North, 1100 North Market Street, Wilmington, Delaware, 19890-0001,
Attention: Corporate Trust Administration, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is 3811 Turtle Creek Boulevard, Suite 1300, Dallas, Texas 75219.
SECTION 2.3. Organizational Expenses. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee; provided, however, that such expenses paid by any Trustee shall have
been paid in accordance with the limitations enumerated in Section 2.6 hereof.
The Depositor shall make no claim upon the Trust Property for the payment of
such expenses.
SECTION 2.4. Issuance of the Preferred Securities. As of March 18,
1998, the Depositor as sponsor of the Trust executed and delivered the Purchase
Agreement. Contemporaneously with the execution and delivery of this
Declaration, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the
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Purchasers named therein Preferred Securities Certificates, in an aggregate
amount of 12,000,000 Preferred Securities having an aggregate Liquidation Amount
of $600,000,000, against receipt of the aggregate purchase price of such
Preferred Securities of $600,000,000, which amount the Administrative Trustees
shall promptly deliver to the Property Trustee.
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of the
Common Securities. Contemporaneously with the execution and delivery of this
Declaration, (a) an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Depositor Common
Securities Certificates registered in the name of the Depositor, in an aggregate
amount of 371,135 Common Securities having an aggregate Liquidation Amount of
$18,556,750 against receipt of the aggregate purchase price of such Common
Securities from the Depositor of the sum of $18,556,750 and (b) the
Administrative Trustees, on behalf of the Trust, shall subscribe to and purchase
from the Depositor the Debentures, registered in the name of the Property
Trustee (in its capacity as such) and having an aggregate principal amount equal
to $618,556,750, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $618,556,750.
SECTION 2.6. Declaration of Trust; Intent Clause. The exclusive
purposes and functions of the Trust are (a) to issue and sell Trust Securities
and use the proceeds from such sale to acquire the Debentures, (b) to distribute
the Trust's income as provided in this Declaration and (c) to engage in only
those other activities necessary or incidental thereto, including, without
limitation, those activities specified in Sections 2.7(a), 2.7(c), 8.1 and 8.3.
The Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, mortgage or pledge any of its assets or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States Federal income tax purposes as a grantor trust. It
is the intent of the parties hereto that the Trust qualify as a grantor trust
for United States federal income tax purposes. Securityholders, by their
purchase of Trust Securities, agree to treat the Trust as such in all tax and
accounting filings. Any ambiguity in this Agreement shall be interpreted in a
manner consistent with such classification. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Trust and the Securityholders. The Administrative Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers of, nor shall the Delaware Trustee
have any of the duties and responsibilities of, the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be a
Trustee of the Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act. In the event
the Delaware Trustee shall at any time be required to take any action or perform
any duty under this Declaration, the Delaware Trustee shall be entitled to the
benefits of Sections 8.1 and 8.3. No implied covenants or obligations shall be
read into this Declaration against the Delaware Trustee.
SECTION 2.7. Authorization to Enter into Certain Transactions. (a) The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Declaration. Subject to
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the limitations set forth in Section 2.6 and paragraph (b) of this Section 2.7,
and in accordance with the following provisions (i) and (ii), the Property
Trustee and the Administrative Trustees shall have the exclusive power and
authority, and are hereby authorized and directed to, cause the Trust to engage
in the following activities:
(i) As among the Trustees, each Administrative Trustee shall
have the power and authority and is hereby authorized and directed to
act on behalf of the Trust with respect to the following matters:
(A) to execute, deliver, issue and sell the Trust
Securities; provided, however, that the Trust may issue no
more than one series of Preferred Securities and no more than
one series of Common Securities; and, provided, further, that
there shall be no interests in the Trust other than the Trust
Securities; and, provided, further, that the issuance of Trust
Securities shall be limited to simultaneous issuance of both
Preferred Securities and Common Securities on the Closing Date
and any other date Preferred Securities and Common Securities
are sold pursuant to the exercise of the over-allotment option
granted to the Initial Purchasers in the Purchase Agreement,
subject to the issuance of Trust Securities pursuant to
Section 5.5 and Successor Securities pursuant to Section 9.5;
(B) to acquire the Debentures with the proceeds of
the sale of the Preferred Securities and the Common
Securities; provided, however, that the Administrative
Trustees shall cause legal title to the Debentures to be held
of record in the name of the Property Trustee for the benefit
of the Securityholders;
(C) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Registration
Rights Agreement, the Purchase Agreement and each other
agreement and instrument (including, without limitation, such
certificates and cross-receipts as may be necessary in
connection with the issuance and sale of the Trust Securities
and the purchase of the Debentures) as such Administrative
Trustee deems necessary or incidental to the purposes and
function of the Trust;
(D) to assist in the registration of the Preferred
Securities, Guarantee and the shares of Common Stock
underlying the Debentures upon conversion thereof under the
Securities Act of 1933, as amended, and under state securities
or blue sky laws, and the qualification of this Declaration as
a trust indenture under the Trust Indenture Act and to cause
the Trust to take any action deemed in such Administrative
Trustee's discretion to be necessary, advisable or convenient
to comply with the Trust's obligations under the Trust
Indenture Act;
(E) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall
be determined by the Depositor and the registration of the
Preferred Securities under the Securities Exchange Act of
1934, as amended, and the preparation and filing of all
periodic and other reports
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and other documents pursuant to the foregoing (only to the
extent that such listing or registration is requested by the
Depositor);
(F) to appoint a Paying Agent, Conversion Agent,
authenticating agent and a Securities Registrar in accordance
with this Declaration;
(G) to the extent provided in this Declaration, to
wind up the affairs of and liquidate the Trust and prepare,
execute and file the certificate of cancellation with the
Secretary of State of the State of Delaware;
(H) to execute on behalf of the Trust (either acting
alone or together with any other Administrative Trustees) any
documents that the Administrative Trustees have the power to
execute pursuant to this Declaration; and
(I) to take any action incidental to the foregoing as
the Administrative Trustees may from time to time determine in
their discretion is necessary, advisable or convenient to give
effect to the terms of this Declaration, including, but not
limited to:
(i) causing the Trust not to be
deemed to be an "investment company" required to
be registered under the 1940 Act;
(ii) ensuring the Trust will be classified
for United States federal income tax purposes as a
grantor trust at all times that any Trust Securities
are outstanding;
(iii) causing the Trust not to be classified
for United States Federal income tax purposes as a
corporation; and
(iv) cooperating with the Depositor to
ensure that the Debentures will be treated as
indebtedness of the Depositor for United States
Federal income tax purposes;
provided that such action does not adversely affect in any
material respect the interests of Securityholders except as
otherwise provided in Section 10.2(a).
(ii) As among the Trustees, the Property Trustee shall have
the power and authority and is hereby authorized and directed to act on
behalf of the Trust with respect to the following matters:
(A) the establishment of the Property Account;
(B) to authenticate Preferred Securities delivered to
it for authentication by or on behalf of an Administrative
Trustee;
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(C) the receipt of and taking title to the
Debentures;
(D) the collection of interest, principal and any
other payments made in respect of the Debentures in the
Property Account;
(E) the distribution from the Trust Property of
amounts owed to the Securityholders in respect of the Trust
Securities pursuant to this Declaration;
(F) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(G) the sending of notices of default, other notices
and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this
Declaration;
(H) the distribution of the Trust Property in
accordance with the terms of this Declaration;
(I) to the extent provided in this Declaration, the
winding up of the affairs of and liquidation of the Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(J) the taking of any action incidental to the
foregoing (including executing any certificate or
acknowledgment of the Property Trustee's receipt of the
Debentures) as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the
terms of this Declaration and protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any
particular Securityholder);
(K) subject to this Section 2.7(a)(ii), the Property
Trustee shall have none of the duties, liabilities, powers or
the authority of the Administrative Trustees set forth in
Section 2.7(a)(i);
(L) to act as Paying Agent, Conversion Agent and/or
Securities Registrar to the extent appointed as such hereunder
and executing and delivering letters, documents or instruments
with the Clearing Agency relating to the Preferred Securities;
including, without limitation, the Certificate Depositary
Agreement, and
(M) to appoint an authenticating agent in accordance
with this Declaration.
(b) So long as this Declaration remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trust shall not, the Trustees shall not
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and the Administrative Trustees shall cause the Trust not to (i) invest any
proceeds received by the Trust from holding the Debentures (rather, the Trustees
shall distribute all such proceeds to the Securityholders pursuant to the terms
of this Declaration and the Trust Securities), acquire any investments or engage
in any activities not authorized by this Declaration, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that, to such Trustee's actual
knowledge, would cause the Trust to fail or cease to qualify as a "grantor
trust" for United States Federal income tax purposes, (iv) make any loans or
incur any indebtedness for borrowed money or issue any other debt, (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property, (vi) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Trust Securities in any way whatsoever
except as permitted by the terms of this Declaration, or (vii) issue any
securities or other evidences of beneficial ownership of, or beneficial interest
in, the Trust other than the Trust Securities. The Administrative Trustees shall
defend all claims and demands of all Persons at any time claiming any Lien on
any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following actions (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Declaration are hereby ratified and confirmed in all respects):
(i) to cause the Trust to file, at the expense of the
Depositor, with the Commission and to execute on behalf of the Trust a
registration statement on the appropriate form in relation to the
Preferred Securities, including any amendments thereto;
(ii) to determine the states and foreign jurisdictions in
which to take appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such acts, other
than actions which must be taken by or on behalf of the Trust, and
advise the Trustees of actions which they must take on behalf of the
Trust, and prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such states and foreign jurisdictions;
(iii) to the extent the Administrative Trustees deem
necessary, to prepare for filing by the Trust with the Commission and
to execute on behalf of the Trust a registration statement on Form 8-A
relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Securities Exchange Act of 1934, as amended,
including any amendments thereto (it being understood that neither the
Trust nor the Depositor has any obligation under the Indenture, the
Purchase Agreement or the Declaration to register any Trust Securities
under the Securities Exchange Act of 1934, as amended, or to list any
Trust Securities on any securities exchange);
(iv) to cause the Trust to enter into, and execute, deliver
and perform on behalf of the Trust, the Registration Rights Agreement,
the Purchase Agreement and the
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Certificate Depositary Agreement and such other agreements as may be
necessary or incidental to the purposes and functions of the Trust; and
(v) any other actions necessary or incidental to carry out any
of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or taxed as a corporation
for United States Federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Depositor for United States Federal income tax
purposes. In this connection, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Declaration, that each of the Depositor and the
Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes, so long as such action does not adversely affect in
any material respect the interests of the Holders of the Preferred Securities
except as otherwise provided in Section 10.2(a).
SECTION 2.8. Assets of Trust. The assets of the Trust shall
consist of only the Trust Property.
SECTION 2.9. Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Trust and the Securityholders in accordance with this Declaration. The
Securityholder shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
ARTICLE 3
PROPERTY ACCOUNT
SECTION 3.1. Property Account. (a) On or prior to the Closing Date, the
Property Trustee shall establish the Property Account. The Property Trustee and
any agent of the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Property Account for the purpose of making
deposits in and withdrawals from the Property Account in accordance with this
Declaration. All monies and other property deposited or held from time to time
in the Property Account shall be held by the Property Trustee in the Property
Account for the exclusive benefit of the Securityholders and for distribution as
herein provided including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Property 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
Property Account shall not be invested by the Property Trustee pending
distribution thereof.
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ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions. (a) Distributions on the Trust Securities
will accumulate from March 24, 1998, or the most recent Distribution Date to
which Distributions have been paid in full and, except in the event that the
Depositor exercises its right to defer the payment of amounts due under the
Debentures pursuant to the Indenture, shall be payable quarterly in arrears on
January 1, April 1, July 1, and October 1 of each year to the holders of record
of the Preferred Securities on the Relevant Record Date, commencing on July 1,
1998 (which dates correspond to the interest payment dates on the Debentures),
when, as and if available for payment by the Property Trustee, as further
described in paragraph (c) of this Section 4.1. In the event any date on which
Distributions are payable on the Trust Securities is not a Business Day, the
payment of such Distributions payable on such date shall be made on the next
succeeding day that is a Business Day and without any additional Distributions
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 relevant Distribution Payment date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"DISTRIBUTION DATE").
(b) The Trust Securities represent undivided beneficial interests in
the Trust Property, and the Distributions on the Trust Securities shall be
payable at a rate of 5 1/2% per annum of the Liquidation Amount of the Trust
Securities, such rate being the rate of interest payable on the Debentures to be
held by the Property Trustee. The amount of Distributions payable for any period
shall be computed on the basis of a 360-day year of twelve 30-day months. For
periods less than three months, Distributions shall reflect interest on
Debentures computed on the basis of the actual number of elapsed days in such
period based on 30-day months. The amount of Distributions payable for any
period shall include any accrued and unpaid Additional Sums, Additional Amounts
and Liquidated Damages, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Property Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds actually received by the Property
Trustee and then on hand and available in the Property Account for the payment
of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date or Redemption Date, if applicable, shall be payable to the
Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be the date which is the
fifteenth day (whether or not a Business Day) next preceding such Distribution
Date or Redemption Date (the "RELEVANT RECORD DATE"). Subject to Section 4.5
hereof, all Distributions shall be made pro rata.
SECTION 4.2. Redemption. (a) (i) Upon an optional redemption (as
provided for in the Indenture) of Debentures, the proceeds from such redemption
to the extent actually received by the Property Trustee shall be applied to
redeem Trust Securities having an aggregate
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Liquidation Amount equal to the aggregate principal amount of the Debentures so
redeemed by the Depositor, including pursuant to Section 4.4, at the Optional
Redemption Price, and upon a mandatory redemption (as set forth in the
Indenture) of Debentures, the proceeds from such redemption shall be applied to
redeem Trust Securities, pro rata, having an aggregate Liquidation Amount equal
to the aggregate principal amount of the Debentures so redeemed by the
Depositor, at the Redemption Price. The Trust shall not redeem the Trust
Securities unless, on or before the date the Trust gives notice of redemption to
the Securityholders, all accrued and unpaid Distributions for all quarterly
payment periods ending on or prior to the most recent Distribution Date have
been paid in full on all outstanding Preferred Securities.
(ii) If at any time less than five percent (5%) in principal amount of
the Debentures originally issued by the Depositor remain outstanding, such
Debentures shall be redeemable, at the option of the Depositor, in whole but not
in part, at the Redemption Price; in such event, the proceeds from such
redemption to the extent actually received by the Property Trustee shall be
applied to redeem the Outstanding Trust Securities.
(b) Notice of any redemption (optional or mandatory) of Trust
Securities (which notice will be irrevocable) shall be prepared by or on behalf
of the Administrative Trustees and delivered to the Property Trustee, and shall
then be given by the Property Trustee by first-class mail, postage prepaid,
mailed to the Depositor and each Holder of Trust Securities to be redeemed not
less than 30 nor more than 60 days prior to the Redemption Date, at such
Holder's address as it appears in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption
Price, as the case may be;
(iii) the applicable CUSIP number;
(iv) if less than all of the Outstanding Trust Securities are
to be redeemed, the identification and the aggregate Liquidation Amount
of the particular Trust Securities to be redeemed in accordance with
Section 4.2(e);
(v) if the Preferred Securities are convertible, (A) that a
Holder of Preferred Securities who desires to convert such Preferred
Securities called for redemption must satisfy the requirements for
conversion contained in Section 4.3 below, (B) the Conversion Price and
(C) the date and time when the option to convert shall expire;
(vi) that on the Redemption Date the Redemption Price or the
Optional Redemption Price, as the case may be, will become due and
payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date and
the Trust Security will cease to have conversion privileges; and
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(vii) the place or places where such Trust Securities are to
be surrendered for payment of the Redemption Price or the Optional
Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price or the Optional Redemption Price, as the case
may be, with the proceeds from the contemporaneous redemption of Debentures.
Redemption of the Trust Securities shall be made and the Redemption Price or the
Optional Redemption Price, as the case may be, shall be payable on each
Redemption Date only to the extent that the Trust has funds actually received by
the Property Trustee and then on hand and available in the Property Account for
the payment of such Redemption Price or the Optional Redemption Price, as the
case may be.
(d) If the Property Trustee gives a notice of redemption 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 shall, so long
as and to the extent the Preferred Securities are in book-entry-only form,
irrevocably deposit with the Clearing Agency for the Preferred Securities funds
sufficient to pay the applicable Redemption Price and will give the Clearing
Agency irrevocable instructions and authority to pay the Redemption Price or the
Optional Redemption Price, as the case may be, to the Holders of such Preferred
Securities. If the Preferred Securities are no longer in book-entry only form,
the Property Trustee, subject to Section 4.2(c), will irrevocably deposit with
the Paying Agent funds sufficient to pay the applicable Redemption Price or
Optional Redemption Price, as the case may be, on such Preferred Securities held
in certificated form and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price or the Optional Redemption Price, as the
case may be, to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the Relevant Record Dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease
(including the accumulation of Distributions and conversion rights of Trust
Securities), except the right of such Securityholders to receive the Redemption
Price or the Optional Redemption Price, as the case may be, but without interest
on such Redemption Price or Optional Redemption Price, as the case may be, and
such Trust Securities will cease to be Outstanding. In the event that any date
fixed for redemption of Trust Securities is not a Business Day, then payment of
the Redemption Price or the Optional Redemption Price, as the case may be,
payable on such date shall be made on the next succeeding day which is a
Business Day (without interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next 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 such date. In the event that payment of the
Redemption Price in respect of Preferred Securities called for redemption is
improperly withheld or refused and not paid by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Preferred Securities will
continue to accumulate at the then applicable rate, from the Redemption Date
originally established by the Trust to the date such Redemption Price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purpose of calculating the Redemption Price.
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(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Common Securities and the Preferred Securities
that are to be redeemed. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by lot or by such other method as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $50 or an integral multiple of $50 in excess thereof) of
the Liquidation Amount of the Preferred Securities. The Property Trustee shall
promptly notify the Securities Registrar and the Conversion Agent (unless the
Property Trustee is then serving as the Securities Registrar and Conversion
Agent) in writing of the Preferred Securities selected for partial redemption
and, in the case of any Preferred Securities selected for redemption, the
Liquidation Amount thereof to be redeemed; it being understood that, in the case
of Preferred Securities registered in the name of and held of record by the
Clearing Agency or its nominee, the distribution of the proceeds of such
redemption will be made in accordance with the procedures of the Clearing Agency
or its nominee. For all purposes of this Declaration, unless the context
otherwise requires, all provisions relating to the redemption of Trust
Securities shall relate, in the case of any Trust Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of Trust
Securities which has been or is to be redeemed. In the event of any redemption
in part, the Trust shall not be required to (i) issue, or register the transfer
of or exchange of, any Preferred Security during a period beginning at the
opening of business 15 days before any selection of the Preferred Securities to
be redeemed and ending at the close of business on the earliest date in which
the relevant notice of redemption is deemed to have been given to all holders of
Preferred Securities to be so redeemed pursuant to Section 10.8 or (ii) register
the transfer of or exchange of any Preferred Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of any
Preferred Securities being redeemed in part.
SECTION 4.3. Conversion. The Holders of Trust Securities, subject to
the limitations set forth in this Section 4.3, shall have the right at any time
beginning 90 days following the first date of original issuance of the Trust
Securities through the Conversion Expiration Date, at their option, to cause the
Conversion Agent to convert Trust Securities, on behalf of the converting
Holders, into shares of Common Stock in the manner described herein on and
subject to the following terms and conditions:
(a) The Trust Securities will be convertible into fully paid and
nonassessable shares of Common Stock pursuant to the Holder's direction to the
Conversion Agent to exchange such Trust Securities for a portion of the
Debentures equal in principal amount to the aggregate Liquidation Amount of the
Trust Securities to be converted, and immediately convert such amount of
Debentures into fully paid and nonassessable shares of Common Stock at an
initial conversion price of $78.25 per share of Common Stock, subject to certain
adjustments set forth in the Indenture (as so adjusted, the "CONVERSION PRICE"),
which is equivalent to an initial conversion rate of 0.6390 shares of Common
Stock for each Trust Security.
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(b) In order to convert Trust Securities into Common Stock, the Holder
of such Trust Securities shall submit to the Conversion Agent an Irrevocable
Notice of Conversion (in substantially the form of Exhibit E hereto) to convert
Trust Securities on behalf of such Holder, together, if the Trust Securities are
in certificated form, with such certificates. The Notice of Conversion shall (i)
set forth the number of Trust Securities to be converted and the name or names,
if other than the Holder, in which the shares of Common Stock should be issued
and (ii) direct the Conversion Agent (a) to exchange such Trust Securities for a
portion of the Debentures equal in principal amount to the aggregate Liquidation
Amount of the Trust Securities to be converted held by the Property Trustee (at
the rate of exchange specified in the preceding paragraph) and (b) to
immediately convert such Debentures, on behalf of such Holder, into Common Stock
and, if applicable, other securities, cash or property (at the conversion rate
specified in the preceding paragraph). The Conversion Agent shall notify the
Property Trustee of the Holder's election to exchange Trust Securities for a
portion of the Debentures held by the Property Trustee and the Property Trustee
shall, upon receipt of such notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for exchange in accordance with this
Section 4.3. The Conversion Agent shall thereupon notify the Depositor of the
Holder's election to convert such Debentures into shares of Common Stock.
Holders of Trust Securities at the close of business on a Relevant Record Date
for a Distribution will be entitled to receive the Distribution paid on such
Trust Securities on the corresponding Distribution Date notwithstanding the
conversion of such Trust Securities following such Relevant Record Date but
prior to such Distribution Date. Except as provided above, neither the Trust nor
the Depositor will make, or be required to make, any payment, allowance or
adjustment upon any conversion on account of any accumulated and unpaid
Distributions whether or not in arrears, as a result of the Depositor's exercise
of its right to defer payment of amounts due under the Debentures pursuant to
the Indenture or otherwise, accrued on the Trust Securities surrendered for
conversion, or on account of any accumulated and unpaid dividends on the shares
of Common Stock issued upon such conversion. The Depositor, and accordingly the
Trust, will make no payment or allowance for dividends paid on shares of Common
Stock prior to the date shares of Common Stock are issued upon such conversion.
Trust Securities shall be deemed to have been converted immediately prior to the
close of business on the day on which an irrevocable Notice of Conversion
relating to such Trust Securities is received by the Conversion Agent in
accordance with the foregoing provision (the "CONVERSION DATE"). The Person or
Persons entitled to receive the Common Stock issuable upon conversion of the
Debentures shall be treated for all purposes as the record holder or holders of
such Common Stock on the date of conversion. As promptly as practicable on or
after the Conversion Date, the Depositor shall issue and deliver at the office
of the Conversion Agent a certificate or certificates for the number of full
shares of Common Stock issuable upon such conversion, together with the cash
payment, if any, in lieu of any fraction of any share to the Person or Persons
entitled to receive the same pursuant to Section 4.3(d), and the Conversion
Agent shall distribute such certificate or certificates to such Person or
Persons.
(c) Each Holder of a Trust Security by its acceptance thereof initially
appoints the Property Trustee as conversion agent (the "CONVERSION AGENT"), for
the purpose of effecting the conversion of Trust Securities in accordance with
this Section 4.3. In effecting the conversion and transactions described in this
Section 4.3, the Conversion Agent shall be acting as agent of the Holders of
Trust Securities directing it to effect such conversion transactions. The
Conversion
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Agent is hereby authorized (i) to exchange Trust Securities from time to time
for Debentures held by the Trust in connection with the conversion of such Trust
Securities in accordance with this Section 4.3 and (ii) to convert all or a
portion of the Debentures into Common Stock and thereupon to deliver such shares
of Common Stock in accordance with the provisions of this Section 4.3 and to
deliver to the Property Trustee any new Debenture or Debentures for any
resulting unconverted principal amount delivered to the Conversion Agent by the
Indenture Trustee.
(d) No fractional shares of Common Stock will be issued as a result of
conversion, but, in lieu thereof, such fractional interest will be paid in cash
by the Depositor to the Conversion Agent in an amount equal to the Current
Market Price of such fractional share on the date on which Trust Securities were
duly surrendered to the Conversion Agent for conversion, and the Conversion
Agent will in turn make such payment to the Holder or Holders of Trust
Securities so converted.
(e) Nothing in this Section 4.3 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities or as set
forth in this Declaration or otherwise required of the Property Trustee or the
Trust to pay any amounts on account of such withholdings, except that such
amounts will not be withheld if Securityholders satisfy the Property Trustee in
its sole discretion that no taxes are due.
(f) The provisions of this Declaration, including Sections 8.1, 8.3 and
8.6, shall apply to the Property Trustee also in its capacity as Conversion
Agent.
SECTION 4.4. Special Event Exchange or Redemption. (a) If a Special
Event shall occur and be continuing, the Administrative Trustees shall direct
the Conversion Agent to exchange all Outstanding Trust Securities for Debentures
having a principal amount equal to the aggregate Liquidation Amount of the Trust
Securities to be exchanged and to dissolve the Trust; provided, however, that,
in the case of a Tax Event, the Depositor shall have the right to (i) direct
that less than all, or none, as appropriate, of the Trust Securities be so
exchanged if and for so long as the Depositor shall have elected to pay any
Additional Sums such that the net amounts received by Holders of Trust
Securities not so exchanged in respect of Distributions are not reduced as a
result of such Tax Event, and shall not have revoked any such election or failed
to make such payments or (ii) cause the Trust Securities to be redeemed in the
manner set forth below; provided, however, that the Depositor shall be required
to comply with Section 4.4(a)(i) to the extent Trust Securities are not
exchanged or redeemed. If a Tax Event shall occur or be continuing, the
Depositor shall have the right, upon not less than 30 nor more than 60 days'
notice, to redeem the Debentures, in whole or in part, for cash upon the later
of (i) 90 days following the occurrence of such Tax Event or (ii) April 2, 2001.
Promptly following such redemption, Trust Securities with an aggregate
Liquidation Amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Redemption Price on a pro rata
basis, except as provided for in Section 4.5.
(b) Notice of any exchange pursuant to this Section 4.4 (an "EXCHANGE
NOTICE") of the Trust Securities, which Exchange Notice shall be irrevocable,
will be given by the Property
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Trustee by first-class mail to the Depositor and to each record Holder of Trust
Securities to be exchanged not fewer than 30 nor more than 60 days prior to the
date fixed for exchange thereof. For purposes of the calculation of the date of
exchange and the dates on which notices are given pursuant to this paragraph
(b), an Exchange Notice shall be deemed to be given on the day such notice is
first mailed by first-class mail, postage prepaid, to each Holder. Each Exchange
Notice shall be addressed to each Holder of Trust Securities at the address of
such Holder appearing in the Securities Register. Each Exchange Notice shall
state: (A) the exchange date; (B) the aggregate Liquidation Amount on the Trust
Securities to be exchanged and the aggregate principal amount of the Debentures
to be exchanged therefor; (C) that on the exchange date the Trust Securities to
be so exchanged shall be exchanged for Debentures and that Distributions on the
Trust Securities so exchanged will cease to accumulate on and after said date;
and (D) the identity of the Conversion Agent, if any, and the place or places
where each Trust Certificate to be exchanged is to be surrendered in exchange
for Debentures. No defect in the Exchange Notice or in the mailing thereof with
respect to any Trust Security shall affect the validity of the exchange
proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding Preferred
Securities are to be exchanged, then, on the exchange date, (i) if all of the
Outstanding Preferred Securities are represented by Definitive Preferred
Securities Certificates, the particular Preferred Securities to be exchanged
will be selected by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption or exchange on a pro rata basis
(based on Liquidation Amounts), (ii) if all of the Outstanding Preferred
Securities are represented by Book-Entry Preferred Securities Certificates, the
Property Trustee shall provide for the selection for exchange of a portion of
the Rule 144A Global Certificate representing the Book-Entry Preferred
Securities Certificates on a pro rata basis (based on Liquidation Amounts) and
(iii) if Outstanding Trust Securities are represented by both Definitive
Preferred Securities Certificates and Book-Entry Preferred Securities
Certificates, the Property Trustee shall select the portion of the Rule 144A
Global Certificate representing the Book-Entry Preferred Securities Certificates
and the particular Outstanding Preferred Securities represented by Definitive
Preferred Securities Certificates to be exchanged on a pro rata basis. In the
case of clause (ii) or (iii) above, the particular Book-Entry Preferred
Securities Certificates to be exchanged shall be selected in accordance with the
applicable rules and procedures for the Clearing Agency in whose name, or whose
nominee's name, such Rule 144A Global Certificate is then held. Any Preferred
Securities Certificate that is to be exchanged only in part shall be surrendered
with due endorsement or by a written instrument of transfer fully executed by
the Holder thereof (or its attorney duly authorized in writing) and the
Administrative Trustees shall prepare and the Property Trustee shall
authenticate and deliver to such Holder, without service charge, a new Preferred
Securities Certificate or Certificates in aggregate stated Liquidation Amount
equal to, and in exchange for, the unexchanged portion of the Preferred
Securities Certificate so surrendered. The Common Securities shall be exchanged
in a similar manner.
(d) In the event of an exchange pursuant to this Section 4.4, on the
date fixed for any such exchange, (i) if the Preferred Securities are
represented by Book-Entry Preferred Securities Certificates, the Clearing Agency
or its nominee, as the record Holder of the Preferred Securities, will exchange
through the Conversion Agent the Rule 144A Global Certificate representing the
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Preferred Securities to be exchanged for a registered Rule 144A Global
Certificate or certificates representing the Debentures to be delivered upon
such exchange, (ii) if the Preferred Securities are represented by Definitive
Preferred Securities Certificates, the certificates representing the Preferred
Securities to be so exchanged will be deemed to represent Debentures having a
principal amount equal to the aggregate stated Liquidation Amount of such
Preferred Securities until such certificates are presented to the Conversion
Agent for exchange for definitive certificates representing Debentures and (iii)
all rights of the Holders of the Preferred Securities so exchanged will cease,
except for the right of such Holders to receive Debentures. The Common
Securities shall be exchanged in a similar manner.
(e) Each Holder, by becoming a party to this Declaration pursuant to
Section 10.11 of this Declaration, will be deemed to have agreed to be bound by
these exchange provisions in regard to the exchange of Trust Securities for
Debentures pursuant to the terms described above.
(f) Nothing in this Section 4.4 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities or as set
forth in this Declaration or otherwise require the Property Trustee or the Trust
to pay any amounts on account of such withholdings.
SECTION 4.5. Subordination of Common Securities. Payment of
Distributions on, and the Redemption Price or Optional Redemption Price of, the
Trust Securities, as applicable, shall be made pro rata based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date a Responsible Officer of the Property Trustee has actual
knowledge that a Debenture Event of Default under clauses (a) or (b) of Section
5.1 of the Indenture shall have occurred and be continuing, no payment of any
Distribution on, or the Redemption Price or Optional Redemption Price of, any
Common Security, and no other payment on account of the redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price or Optional Redemption Price 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 on, or the Redemption Price or Optional Redemption Price of,
Preferred Securities then due and payable.
SECTION 4.6. Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, in accordance with
the Certificate Depositary Agreement on the applicable Distribution Dates or
Redemption Dates. Payments, if any, in respect of the Common Securities shall be
made in such manner as shall be mutually agreed between the Property Trustee and
the Holder of the Common Securities.
SECTION 4.7. Tax Returns and Reports. The Administrative Trustees shall
prepare (or cause to be prepared), at the Depositor's expense, and file all
United States Federal,
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State and local tax and information returns and reports required to be filed by
or in respect of the Trust. In this regard, the Administrative Trustees shall
(a) prepare and file (or cause to be prepared or filed) Form 1041 or the
appropriate Internal Revenue Service form required to be filed in respect of the
Trust in each taxable year of the Trust and (b) prepare and furnish (or cause to
be prepared and furnished) to each Holder a Form 1099 or the appropriate
Internal Revenue Service form required to be furnished to such Holder or the
information required to be provided on such form. The Administrative Trustees
shall provide the Depositor and the Property Trustee with a copy of all such
returns, reports and schedules promptly after such filing or furnishing. The
Administrative Trustees and the Property Trustee shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust. Upon receipt
under the Debentures of Additional Sums, the Property Trustee, upon receipt of
written notice from the Depositor or the Administrative Trustees, shall promptly
pay from such Additional Sums any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
SECTION 4.9. Payments under Indenture. Any amount payable hereunder to
any Holder of Preferred Securities (and any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (or Owner) has
directly received pursuant to Section 5.8 of the Indenture in accordance with
the terms of Section 6.8 hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the formation of the Trust and
until the issuance of the Trust Securities, and at any time during which no
Trust Securities are Outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 5.2. The Trust Securities Certificates. The Preferred
Securities Certificates shall be issued in minimum denominations of $50
Liquidation Amount and integral multiples of $50 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $50
Liquidation Amount and integral multiples thereof. The consideration received by
the Trust for the issuance of the Trust Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the
Trust. Preferred Securities initially sold to qualified institutional buyers in
reliance on Rule 144A under the Securities Act ("RULE 144A PREFERRED
SECURITIES") initially will be represented by one or more certificates in
registered, global form (collectively, the "RESTRICTED RULE 144A GLOBAL
CERTIFICATE"). Preferred Securities transferred in accordance with Section 5.4
in a manner exempt from the registration requirements of the Securities Act or
pursuant to Section 5.13 will be exchanged for Preferred Securities in
registered, certificated form (the "CERTIFICATED PREFERRED SECURITIES"). The
Preferred Securities Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of at least one
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Administrative Trustee and authenticated by the Property Trustee. The Common
Securities Certificate shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be validly issued and entitled to the benefit of this
Declaration, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.4.
SECTION 5.3. Delivery of Trust Securities Certificates. On the Closing
Date, the Administrative Trustees shall cause Trust Securities Certificates, in
an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be
executed by an Administrative Trustee on behalf of the Trust and delivered to or
upon the written order of an Administrative Trustee or authorized agent thereof
without further action by the Trust, in authorized denominations.
A Preferred Security Certificate shall not be valid until authenticated
by the manual signature of an authorized signatory of the Property Trustee and
shall be dated as of the date of such authentication. The signature shall be
conclusive evidence that the Trust Security Certificate has been authenticated
under this Declaration. Upon a written order of the Trust signed by one
Administrative Trustee, the Property Trustee shall authenticate the Trust
Security Certificates for original issue.
The Property Trustee may appoint an authenticating agent acceptable to
the Administrative Trustees to authenticate Preferred Security Certificates. An
authenticating agent may authenticate Preferred Security Certificates whenever
the Property Trustee may do so. Each reference in this Declaration to
authentication by the Property Trustee includes authentication by such agent. An
authenticating agent has the same rights as the Property Trustee to deal with
the Depositor or an Affiliate with respect to the authentication of Preferred
Securities.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer. (a) The Securities Registrar shall keep or
cause to be kept, at the office or agency maintained pursuant to Section 5.8, a
register in which, subject to such reasonable regulations as it may prescribe,
such register shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.10 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided (such register
is herein sometimes referred to as the "SECURITIES REGISTER"). The Property
Trustee shall be the initial Securities Registrar. The provisions of this
Declaration, including Sections 8.1, 8.3 and 8.6, shall apply to the Property
Trustee in its role as Securities Registrar.
Subject to the other provisions of this Declaration regarding
restrictions on transfer, upon surrender for registration of transfer of any
Preferred Security at an office or agency of the Depositor designated pursuant
to Section 5.8 for such purpose, an Administrative Trustee shall execute, and
the Property Trustee shall authenticate and deliver, in the name of the
designated
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transferee or transferees, one or more new Preferred Securities of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Declaration.
At the option of the Holder, and subject to the other provisions of
this Section 5.4, Preferred Securities may be exchanged for other Preferred
Securities of any authorized denomination and of a like Liquidation Amount, upon
surrender of the Preferred Securities to be exchanged at any such office or
agency of the Depositor. Whenever any Preferred Securities are so surrendered
for exchange, an Administrative Trustee shall execute, and the Property Trustee
shall authenticate and deliver, the Preferred Securities which the Holder making
the exchange is entitled to receive.
All Preferred Securities issued upon any registration of transfer or
exchange of Preferred Securities shall be entitled to the same benefits under
this Declaration as the Preferred Securities surrendered upon such registration
of transfer or exchange.
Every Preferred Security presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Depositor and the Securities
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates, other than exchanges pursuant to Sections 4.2(c), 4.4
and 5.13.
(b) A beneficial interest in a Rule 144A Global Certificate may be
exchanged for a Certificated Preferred Security in connection with certain
transfers exempt from registration under the Securities Act, but only upon the
delivery of such certificates and legal opinions as may be required by, and to
the satisfaction of, the Administrative Trustees and the Property Trustee.
(c) Securities Act Legends. Rule 144A Securities, Certificated
Preferred Securities and their respective Successor Securities shall bear a
Restricted Securities Legend as set forth in Section 5.15, subject to the
following:
(i) subject to the following Clauses of this Section 5.4(c), a
Certificated Preferred Security or any portion thereof which is
exchanged upon transfer or otherwise, for a Rule 144A Global
Certificate or any portion thereof shall bear the Securities Act Legend
borne by such Rule 144A Global Certificate while represented thereby;
(ii) Any Preferred Securities which are sold or otherwise
disposed of pursuant to an effective registration statement under the
Securities Act (including the Shelf Registration Statement), together
with their Successor Securities shall not bear a Securities Act Legend;
the Depositor shall inform the Property Trustee in writing of the
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effective date of any such registration statement registering the
Preferred Securities under the Securities Act and shall notify the
Property Trustee at any time when prospectuses may not be delivered
with respect to Preferred Securities to be sold pursuant to such
registration statement. The Property Trustee shall not be liable for
any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned registration statement;
(iii) at any time after the Preferred Securities may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act,
a new Preferred Security which does not bear a Securities Act Legend
may be issued in exchange for or in lieu of a Preferred Security (other
than a Rule 144A Global Certificate) or any portion thereof which bears
such a legend if the Property Trustee has received an Unrestricted
Securities Certificate, satisfactory to the Property Trustee and duly
executed by the Holder of such legended Preferred Security or his
attorney duly authorized in writing, and after such date and receipt of
such certificate, an Administrative Trustee shall execute on behalf of
the Trust and the Property Trustee shall authenticate and deliver such
a new Preferred Security in exchange for or in lieu of such other
Preferred Security as provided in this Article 5; and
(iv) notwithstanding the foregoing provisions of this Section
5.4(c), a Successor Security of a Preferred Security that does not bear
a particular form of Securities Act Legend shall not bear such form of
legend unless an Administrative Trustee has reasonable cause to believe
that such Successor Security is a "restricted security" within the
meaning of Rule 144, in which case an Administrative Trustee shall
execute on behalf of the Trust and the Property Trustee, at the
direction of any Administrative Trustee, shall authenticate and deliver
a new Preferred Security bearing a Restricted Securities Legend in
exchange for such Successor Security as provided in this Article 5.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a protected
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and make available to the Property Trustee for
authentication in the case of the Preferred Securities Certificates and
delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Trust Securities Certificate, and the Property Trustee shall authenticate
a new Trust Securities Certificate of like denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section 5.5, the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicative Trust Securities Certificate issued pursuant to this Section 5.5
shall constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
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The provisions of this Section 5.5 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Trust Securities.
SECTION 5.6. Persons Deemed Securityholders. The Property Trustee and
the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Property
Trustee nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses.
The Administrative Trustees or the Depositor shall furnish or cause to be
furnished (unless the Property Trustee is acting as Securities Registrar with
respect to the Trust Securities under the Declaration) a list, in such form as
the Property Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date (a) to the Property Trustee,
quarterly at least five Business Days before each Distribution Date, and (b) to
the Property Trustee, promptly after receipt by the Depositor of a request
therefor from the Property Trustee in order to enable the Property Trustee to
discharge its obligations under this Declaration, in each case to the extent
such information is in the possession or control of the Administrative Trustees
or the Depositor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee in its capacity as Securities
Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Declaration or under the
Trust Securities, and the corresponding rights of the Property Trustee shall be
as provided in the Trust Indenture Act, except to the extent Section 3819 of the
Delaware Business Trust Act would require greater access to such information, in
which case the latter shall apply. Each Holder, by receiving and holding a Trust
Securities Certificate, and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency. The Securities Registrar
shall maintain an office or offices or agency or agencies where Preferred
Securities Certificates may be surrendered for registration of transfer,
exchange or conversion and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The Securities
Registrar initially designates Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration, as
its principal corporate trust office for such purposes. The Securities Registrar
shall give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
SECTION 5.9. Appointment of Paying Agent. In the event that the
Preferred Securities are not in book-entry form only, the Trust shall maintain
an office or agency (the "PAYING AGENT") where the Preferred Securities may be
presented for payment. The Paying Agent shall make Distributions to
Securityholders from the Property Account and shall report the
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amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Property Account for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove the Paying
Agent if such Trustees determine in their sole discretion that the Paying Agent
shall have failed to perform its obligations under this Declaration in any
material respect. The Paying Agent shall initially be the Property Trustee, and
any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Depositor. In the event that 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 Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). Each successor Paying
Agent or any additional Paying Agent shall agree with the Trustees that, as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid to
each Securityholder. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
this Declaration, including Sections 8.1, 8.3 and 8.6, 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 Declaration to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.10. Ownership of Common Securities by Depositor. On the
Closing Date provided for in Section 2.5, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. Except in connection
with mergers, acquisitions, consolidations or other transactions provided for in
Section 8.1 of the Indenture and the pledge of Common Securities by the
Depositor to secure indebtedness, to the fullest extent permitted by law, any
attempted transfer of the Common Securities shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN
EFFECTIVE REGISTRATION STATEMENT."
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate. (a) Each Rule 144A Global Certificate authenticated
under this Declaration shall be registered in the name of the Clearing Agency
designated by the Depositor for such Rule 144A Global Certificate or a nominee
thereof and delivered to such Clearing Agency or a nominee thereof or custodian
therefor, which initially shall be the Property Trustee, and each such Rule 144A
Global Certificate shall constitute a Preferred Security for all purposes of
this Declaration.
(b) If a Rule 144A Global Certificate is to be exchanged for
Certificated Preferred Securities or canceled in whole, it shall be surrendered
by or on behalf of the Clearing Agency, its
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nominee or custodian to the Property Trustee, as Securities Registrar, for
exchange or cancellation as provided in this Article 5. If any Rule 144A Global
Certificate is to be exchanged for Certificated Preferred Securities or canceled
in part, or if another Preferred Security is to be exchanged in whole or in part
for a beneficial interest in any Rule 144A Global Certificate, in each case, as
provided in Section 5.4, then either (i) such Rule 144A Global Certificate shall
be so surrendered for exchange or cancellation as provided in this Article 5 or
(ii) the Liquidation Amount (or share amount) thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
canceled, or equal to the Liquidation Amount (or share amount) of such
Certificated Preferred Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Property Trustee, as Securities Registrar, whereupon the Property
Trustee shall instruct the Clearing Agency or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Rule 144A Global Certificate, the Property Trustee shall,
subject to Section 5.4 and as otherwise provided in this Article 5, authenticate
and deliver any Preferred Securities issuable in exchange for such Rule 144A
Global Certificate (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Clearing Agency or its
authorized representative. Upon the request of the Property Trustee in
connection with the occurrence of any of the events specified in the preceding
paragraph, the Depositor shall promptly make available to the Property Trustee a
reasonable supply of Preferred Securities that are not in the form of Rule 144A
Global Certificates. The Property Trustee shall be entitled to rely upon any
order, direction or request of the Clearing Agency or its authorized
representative which is given or made pursuant to this Article 5.
(c) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Rule 144A
Global Certificate or any portion thereof, whether pursuant to this Article 5 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Rule 144A Global Certificate, unless such Preferred Security is registered in
the name of a Person other than the Clearing Agency for such Rule 144A Global
Certificate or a nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner of a Rule
144A Global Certificate, shall be the holder of such Rule 144A Global
Certificate for all purposes under the Declaration and the Preferred Securities,
and owners of beneficial interests in a Rule 144A Global Certificate shall hold
such interests pursuant to the Applicable Procedures. Accordingly, any such
Owner's beneficial interest in a Rule 144A Global Certificate will be shown only
on, and the transfer of such interest shall be effected only through, records
maintained by the Clearing Agency or its nominee or its participants and such
owners of beneficial interests in a Rule 144A Global Certificate will not be
considered the owners or holders of such Rule 144A Global Certificate for any
purpose of this Declaration or the Preferred Securities.
(e) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency. To the extent that a notice
or other communication to the Owners is required under this Declaration, unless
and until Definitive
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Preferred Securities Certificates shall have been issued to Owners pursuant to
Section 5.13, the Trustees shall give all such notices and communications
specified herein to be given to Owners to the Clearing Agency, and shall have no
obligations to provide notices directly to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
Notwithstanding any other provision in this Declaration other than as provided
for in Section 5.4(b), no Rule 144A Global Certificate may be exchanged in whole
or in part for Preferred Securities registered, and no transfer of a Rule 144A
Global Certificate in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Rule 144A Global Certificate or a
nominee thereof unless (i) such Clearing Agency has notified the Depositor and
the Property Trustee that it is (A) unwilling or unable to continue as Clearing
Agency for such Rule 144A Global Certificate or (B) has ceased to be a "clearing
agency" registered as such under the Securities Exchange Act of 1934, as
amended, and in either case the Trust and the Depositor thereupon fail to
appoint a successor Clearing Agency within 90 days thereafter, (ii) the Trust
and the Depositor, at their option, notify the Property Trustee in writing that
they elect to cause the issuance of the Preferred Securities in certificated
form or (iii) there shall have occurred and be continuing an Event of Default or
any event which after notice or lapse of time or both would be an Event of
Default. In all cases, Certificated Preferred Securities delivered in exchange
for an Rule 144A Global Certificate or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of the Clearing Agency (in accordance with its customary
procedures).
SECTION 5.14. Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.9, and the Securityholders shall not have any right
or title therein other than the undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Declaration.
The Trust Securities shall have no preemptive or similar rights to subscribe for
additional Trust Securities and, when issued and delivered to Securityholders
against payment of the purchase price therefor, will be validly issued, fully
paid and nonassessable beneficial interests in the assets of the Trust. The
Holders of the Trust Securities, in their capacities as such, shall be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
SECTION 5.15. Restrictive Legends. The Restricted Rule 144A Global
Certificate and the Certificated Preferred Securities shall bear the following
legend (the "RESTRICTED SECURITIES LEGEND") unless the Depositor determines
otherwise in accordance with applicable law:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGE OR OTHERWISE TRANSFERRED WITHIN
THE UNITED STATES OR TO, OR FOR THE
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ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT), (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY
EVIDENCED HEREBY OR THE COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OR
EXCHANGE OF SUCH SECURITY EXCEPT (A) TO SUIZA FOODS CORPORATION OR A SUBSIDIARY
THEREOF, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A UNDER THE SECURITIES ACT, OR (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED
HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE FOR THE PREFERRED SECURITIES OR THE DEBENTURES, AS THE CASE MAY BE (OR,
IF THIS CERTIFICATE EVIDENCES COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE
TRANSFER AGENT), TOGETHER WITH SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS SUIZA FOODS CORPORATION, THE TRUSTEE OR THE TRANSFER AGENT, AS
APPLICABLE, MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING;
AMENDMENT OF THE DECLARATION"
SECTION 6.1. Limitations on Voting Rights. (a) Except as provided in
this Section 6.1 and Sections 8.9 and 10.2, in the Indenture, in the Guarantee
and as otherwise required by law, no Holder of Preferred Securities shall have
any right to vote or in any manner otherwise control the administration,
operation and management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the Securityholders
from time to time as partners or members of an association.
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(b) (i) The Declaration may be amended from time to time by the
Depositor and the Trustees, without the consent of the Holders of the Preferred
Securities, (i) to cure any ambiguity, correct or supplement any provisions in
the Declaration that may be inconsistent with any other provisions, or to make
any other provisions with respect to matters or questions arising under the
Declaration that shall not be inconsistent with the other provisions of the
Declaration, (ii) to modify, eliminate or add to any provision of the
Declaration to such extent as shall be necessary to ensure that the Trust will
be classified for United States federal income tax purposes as a grantor trust
at all times that any Trust Securities are outstanding or to ensure that the
Trust will not be required to register as an "investment company" under the 1940
Act or (iii) to qualify or maintain the qualification of the Declaration under
the Trust Indenture Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the interests of any
Holder of Trust Securities, and any amendments of the Declaration shall become
effective when notice thereof is given to the Holders of Trust.
(ii) The Declaration may be amended by the Depositor and the Trustees
with (i) the consent of Holders representing not less than a majority (based
upon Liquidation Amounts) of the Outstanding Trust Securities, acting as a
single class, and (ii) receipt by the Trustees of an Opinion of Counsel having a
national tax and securities practice (which opinion shall not have been
rescinded) to the effect that such amendment or the exercise of any power
granted to the Trustees in accordance with such amendment will not affect the
Trust's status as a grantor trust for United States federal income tax purposes
or the Trust's exemption from the status of an "investment company" under the
1940 Act; provided, further, that (a) without the consent of each Holder of
Trust Securities, the Declaration may not be amended to (i) change the amount or
timing of any Distribution on the Trust Securities or otherwise adversely affect
the amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a Holder of
Securities to institute suit for the enforcement of any such payment on or after
such date.
(iii) Subject to Section 8.2 hereof, if an Event of Default with
respect to the Preferred Securities has occurred and been subsequently cured,
waived or otherwise eliminated, the provisions of Section 6.1(b)(iii)(2) hereof
shall apply. During (x) the period commencing on the date of the occurrence of
an Event of Default with respect to the Preferred Securities and ending on the
date when such Event of Default is cured, waived or otherwise eliminated, or (y)
any period not described in either the preceding sentence or the preceding
clause (x), the provisions of this Section 6.1(b)(iii)(1) shall apply.
(1) The Holders of a majority in aggregate Liquidation Amount
of the Preferred Securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee or to direct the exercise of any trust or power
conferred upon the Property Trustee under the Declaration, including
the right to direct the Property Trustee to exercise the remedies
available to it as a holder of the Debentures, but excluding the right
to direct the Property Trustee to consent to an amendment, modification
or termination of the Indenture (which shall be as provided below). So
long as any Debentures are held by the Property Trustee, the
Administrative Trustees and the Property Trustee shall not (A) direct
the time, method
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and place of conducting any proceeding for any remedy available to the
Indenture Trustee or executing any trust or power conferred on the
Indenture Trustee with respect to such Debentures, (B) waive any past
default that is waivable under Section 5.13 of the Indenture, (C)
exercise any right to rescind or annul a declaration that the principal
of all the Debentures shall be due and payable or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a majority in aggregate
Liquidation Amount of all Outstanding Preferred Securities (except in
the case of clause (D), which consent, in the event that no Event of
Default shall occur and be continuing, shall be of the Holders of all
Trust Securities, voting together as a single class); provided,
however, that where a the Indenture expressly provides that a consent
thereunder 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 Administrative Trustees and 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 each Holder of the Preferred Securities of any notice of default
received from the Indenture Trustee 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
Administrative Trustees and the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as an
association taxable as a corporation or partnership for United States
Federal income tax purposes on account of such action.
(2) Subject to Section 8.2 of this Declaration and only after
the Event of Default with respect to the Preferred Securities has been
cured, waived, or otherwise eliminated, the holders of a majority in
aggregate Liquidation Amount of the Common Securities will have the
right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee or to exercise any
trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Debentures but
excluding the right to direct the Property Trustee to consent to an
amendment, modification or termination of the Indenture (which shall be
as provided below). So long as any Debentures are held by the Property
Trustee, the Administrative Trustees and the Property Trustee shall not
(A) direct the time, method and place of conducting any proceeding for
any remedy available to the Indenture Trustee, or executing any trust
or power conferred on the Indenture Trustee with respect to such
Debentures, (B) waive any past default that is waivable under Section
5.13 of the Indenture, (C) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and
payable or (D) consent to any amendment, modification or termination of
the Indenture or the Debentures where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of a
majority in aggregate Liquidation Amount of all Common Securities
(except in the case of clause (D), which consent, in the event that no
Event of Default shall occur and be continuing, shall be
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of the Holders of all Trust Securities, voting together as a single
class); provided, however, that where the Indenture expressly provides
that a consent thereunder 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
Common Securities. The Administrative Trustees and the Property Trustee
shall not revoke any action previously authorized or approved by a vote
of the Holders of the Common Securities, except by a subsequent vote of
the Holders of the Common Securities. The Property Trustee shall notify
all Holders of record of the Common Securities of any notice of default
received from the Indenture Trustee with respect to the Debentures. In
addition to obtaining the foregoing approvals of the Holders of the
Common Securities, prior to taking any of the foregoing actions, the
Administrative Trustees and the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as an
association taxable as a corporation or partnership for United States
Federal income tax purposes on account of such action.
(c) If any proposed amendment of the Declaration provides for, or the
Administrative Trustees and the Property Trustee otherwise propose to effect,
the dissolution, winding-up or termination of the Trust, other than pursuant to
the terms of this Declaration, then the Holders of Outstanding Preferred
Securities, as a class, will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the approval
of the Holders of a majority in aggregate Liquidation Amount of the Outstanding
Preferred Securities.
SECTION 6.2. 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 Administrative Trustees pursuant to Section 10.8 to each
Preferred Securityholder of record, at its registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3. Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
the Holders of Preferred Securities to vote on any matters as to which such
Holders are entitled to vote.
Holders of record of 50% of the Preferred Securities (based upon their
Liquidation Amount), present in person or by proxy, shall constitute a quorum at
any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Holders
of record of Preferred
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Securities present, in person or by proxy, holding more than a majority of the
Preferred Securities (based upon their Liquidation Amount) held by Holders of
record of Preferred Securities present, either in Person or by proxy, at such
meeting shall constitute the action of the Securityholders, unless this
Declaration requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights. Securityholders shall be entitled to one
vote for each $50 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by the Depositor, the Trustees or any
affiliate of any Trustee shall, for purposes of such vote or consent, be treated
as if such Preferred Securities were not Outstanding.
SECTION 6.5. Proxies, Etc. At any meeting of Securityholders, any
Securityholders entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in Person or represented by proxy in respect
of such Trust Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than a majority of all Outstanding Trust Securities
(based upon their Liquidation Amount) entitled to vote in respect of such action
(or such larger proportion thereof as shall be required by any express provision
of this Declaration) shall consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Declaration, or for the purpose of any other action, the
Property Trustee on behalf of the Trust may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of Distributions or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration to be given, made or taken by Securityholders or
Owners may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders or Owners in
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person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Declaration and (subject to Section 8.1) conclusive in favor of
the Trustees, if made in the manner provided in this Section 6.8.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article 6, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Upon the occurrence and continuation of an Event of Default, the
Holders of Preferred Securities shall rely on the enforcement by the Property
Trustee of its rights as holder of the Debentures against the Depositor. If the
Property Trustee fails to enforce its rights as holder of the Debentures after a
request therefor by a Holder of Preferred Securities, such Holder may proceed to
enforce such rights directly against the Depositor. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the
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Depositor to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
Redemption Date), then a Holder of Preferred Securities shall have the right to
institute a proceeding directly against the Depositor for enforcement of payment
to such Holder of the principal amount of or interest on Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder after the respective due date specified in the
Debentures (a "Direct Action"). In connection with any such Direct Action, the
rights of the Depositor will be subrogated to the rights of any Holder of the
Preferred Securities to the extent of any payment made by the Depositor to such
Holder of Preferred Securities as a result of such Direct Action.
If the Guarantee Trustee (as defined in the Guarantee) fails to enforce
the Guarantee, any Holder of the Preferred Securities may institute a legal
proceeding directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal proceeding against
the Guarantee Trustee, the Trust or any other Person. In addition, any Holder of
Preferred Securities shall have the right, which is absolute and unconditional,
to proceed directly against the Depositor to obtain payments under the
Guarantee, without first waiting to determine if the Guarantee Trustee has
enforced the Guarantee or instituting a legal proceeding against the Trust, the
Guarantee Trustee or any other Person. Similarly, a Holder of Common securities
shall have the right, which is absolute and unconditional, to proceed against
the Depositor to obtain payment under that certain Guarantee Agreement dated
March 24, 1998, of the Guarantor relating to the Common Securities.
SECTION 6.9. Inspection of Records. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE 7
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 Securityholders that (each such representation
and warranty made by the Property Trustee and the Delaware Trustee being made
only with respect to itself):
(a) the Property Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(b) the Delaware Trustee is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(c) each of the Property Trustee and the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and perform its
obligations under this Declaration and
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has taken all necessary action to authorize the execution, delivery and
performance by it of this Declaration;
(d) this Declaration has been duly authorized, executed and delivered
by each of the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of the Property Trustee and the Delaware
Trustee enforceable against each in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(e) the execution, delivery and performance by each of the Property
Trustee and the Delaware Trustee of this Declaration have been duly authorized
by all necessary corporate or other action on the part of the Property Trustee
and the Delaware Trustee and does not require any approval of stockholders of
the Property Trustee or the Delaware Trustee and such execution delivery and
performance will not (i) violate either of the Property Trustee's or the
Delaware Trustee's charter or by-laws, (ii) 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 which is not included or
related to the transactions contemplated by this Declaration and to which the
Property Trustee or the Delaware Trustee is a party or by which it is bound, or
(ii) violate any law, governmental rule or regulation of the United States or
the State of Delaware, as the case may be, governing the banking or trust powers
of the Property Trustee or the Delaware Trustee (as appropriate in context) or
any order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee;
(f) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Declaration nor the consummation of any
of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to, any Delaware or United States federal governmental
authority or agency under the laws of the United States or the State of Delaware
governing the banking or trust powers of the Property Trustee or the Delaware
Trustee, as the case may be;
(g) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Declaration.
SECTION 7.2. Representations and Warranties of Depositor. The Depositor
hereby represents and warrants for the benefit of the Securityholders that:
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(a) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Declaration and
the Securityholders will be, as of such date, entitled to the benefits of this
Declaration; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Declaration.
ARTICLE 8
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities. (a) The duties and
responsibilities of the Trustees shall be as provided by this Declaration and,
in the case of the Property Trustee, by the Trust Indenture Act. The Property
Trustee, before the occurrence of any Event of Default and after the curing or
waiving of all Events of Default that may have occurred, shall undertake to
perform only such duties and obligations as are specifically set forth in this
Declaration and the Trust Indenture Act and no implied covenants shall be read
into this Declaration against the Property Trustee. In case an Event of Default
has occurred (and has not been cured or waived pursuant to Section 8.2) of which
a Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such rights and powers vested in it by this Declaration
and the Trust Indenture Act, and use the same degree of care and skill in its
exercise, as a prudent individual would exercise or use under the circumstances
in the conduct of his or her own affairs. Notwithstanding the foregoing, no
provision of this Declaration shall require the Trustees to expend or risk their
own funds or otherwise incur any financial liability in the performance of any
of their duties hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to them. Whether or not herein expressly so provided, every provision of this
Declaration relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section
8.1. Nothing in this Declaration shall be construed to release the
Administrative Trustees from liability for their own grossly negligent action,
their own grossly negligent failure to act, or their own willful misconduct. To
the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Administrative Trustee's good faith
reliance on the provisions of this Declaration. The provisions of this
Declaration, to the extent that they restrict the duties and liabilities of the
Administrative Trustees otherwise existing at law or in equity, are agreed by
the Depositor and the Securityholders to replace such other duties and
liabilities of the Administrative Trustees.
(b) Subject to any Direct Action by Holders of Preferred Securities,
all payments made by the Property Trustee or a Paying Agent in respect of the
Trust Securities shall be made only
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from the revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments in accordance
with the terms hereof. Each Securityholder, by its acceptance of a Trust
Security, agrees that it will look solely to the revenue and proceeds from the
Trust Property to the extent legally available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.1(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Declaration or, in the
case of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effectiveness of Subsection (a) of this Section 8.1;
(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 upon which such judgment
was made;
(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 a majority of the
aggregate Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration; and
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Declaration, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
(d) The Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Debentures and the Property Account
shall be to deal with such property as fiduciary assets, subject to the
protections and limitations on liability afforded to the Property Trustee under
this Declaration and the Trust Indenture Act.
(e) The Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree in writing with the
Depositor and money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Property Account maintained by
the Property Trustee pursuant to Section 3.l and except to the extent otherwise
required by law.
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SECTION 8.2. Notice of Defaults. (a) Within ten days after a
Responsible Officer shall obtain actual knowledge of the occurrence of any Event
of Default, the Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.8, notice of such Event of Default to the Holders of
Preferred Securities, the Administrative Trustees and the Depositor, unless such
Responsible Officer shall have actual knowledge that such Event of Default shall
have been cured or waived, provided that, except for a default in the payment of
principal of (or premium, if any) or interest (including Additional Sums,
Additional Amounts and Liquidated Damages, if applicable) on any of the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as a Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders of the Preferred
Securities.
(b) Within ten days after the receipt of written 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 10.8, notice of such exercise
to the Securityholders, unless such exercise shall have been revoked.
(c) The Holders of a majority of the aggregate Liquidation Amount of
Outstanding Preferred Securities may, by vote, on behalf of the Holders of all
of the Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Debenture Event of Default:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount of the holders of the Debentures (a "SUPER
MAJORITY") to be waived under the Indenture, the Event of Default under
the Declaration may only be waived by the vote of the Holders of the
same proportion in aggregate Liquidation Amount of the Preferred
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
The provisions of Sections 6.1(b) and 8.2(d) and this Section 8.2(c)
shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such
Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded
from this Declaration and the Preferred Securities, as permitted by the Trust
Indenture Act. Upon such waiver, any such default shall cease to exist, and any
Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Declaration, but
no such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of an Event of
Default with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Event of
Default with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the Holders of the
Common Securities.
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(d) The Holders of a majority in aggregate Liquidation Amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Debenture
Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this Section
8.2(d), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as provided
below in this Section 8.2(d), the Event of Default under the
Declaration may only be waived by the vote of the Holders of the same
proportion in aggregate Liquidation Amount of the Common Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;
provided, further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated.
In such a case, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Preferred Securities to act on their behalf.
The provisions of Section 6.1(b) and 8.2(c) and this Section 8.2(d) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Preferred Securities, as permitted by the Trust Indenture
Act. Subject to the foregoing provisions of this Section 8.2(d), upon such
waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(e) A waiver of an Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the Preferred Securities constitutes
a waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 8.2(e) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Preferred Securities, as permitted by the Trust Indenture Act.
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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 protected
in acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation or instruction of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(b) if, (i) in performing its duties under this Declaration the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions in this Declaration the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Declaration, then, except as to any matter as to which the
Holders of Preferred Securities are specifically entitled to vote under the
terms of this Declaration, the Property Trustee shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the course of
action to be taken and the Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor and shall have no liability
whatsoever for such action or inaction except for its own bad faith, negligence
or willful misconduct; provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business Days after it has
delivered such notice, or such shorter period of time set forth in such notice
(which to the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Declaration as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property Trustee shall have
no liability except for its own bad faith, negligence or willful misconduct;
(c) if a Responsible Officer of the Property Trustee has obtained
actual knowledge that an Event of Default has occurred and is continuing and,
(i) in performing its duties under this Declaration the Property Trustee is
required to decide between alternative courses of action or (ii) in construing
any of the provisions in this Declaration the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained herein or (iii)
the Property Trustee is unsure of the application of any provision of this
Declaration, then, except as to any matter as to which the Holders of Preferred
Securities are specifically entitled to vote under the terms of this
Declaration, the Property Trustee may deliver a notice to the Holders requesting
written instructions of the Holders as to the course of action to be taken and
the Property Trustee shall take such action, or refrain from taking such action,
as the Property Trustee shall be instructed in writing to take, or to refrain
from taking, by a majority in interest of the Outstanding Preferred Securities
and shall have no liability whatsoever for such action or inaction; provided,
however, that if the Property Trustee does not receive such instructions of the
Holders within ten Business Days after it has delivered such notice, or such
shorter period of time set forth in such notice (which to the extent practicable
shall not be less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this
Declaration as
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it shall deem advisable and in the best interests of the Holders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(d) any direction or act of the Depositor or the Administrative
Trustees contemplated by this Declaration shall be sufficiently evidenced by an
Officer's Certificate and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(e) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officer's Certificate and an Opinion of
Counsel which, upon receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
(f) the Property Trustee shall have no duty to accomplish any
recording, filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
re-recording, refiling or re-registration thereof;
(g) the Property Trustee may consult with counsel and other experts of
its selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice or opinion of
such counsel and experts or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice or opinion; and the Property Trustee shall have the right at any
time to seek instructions concerning the administration of this Declaration from
any court of competent jurisdiction;
(h) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the request or
direction of any of the Securityholders pursuant to this Declaration, unless
such Securityholders shall have offered to the Property Trustee security and
indemnity, reasonably satisfactory to the Property Trustee, against the costs,
expenses (including reasonable attorneys' fees and expenses and the expenses of
the Property Trustee's agents, nominees or custodians) and liabilities which
might be incurred by it in compliance with such request or direction, including
such reasonable advances as may be requested by the Property Trustee;
(i) the Property Trustee shall not be bound to make an investigation
into the facts or matters stated in any resolutions, certificate, statement,
instrument, opinion, report, notice, request, consent, direction, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless specifically requested and directed in writing to do so by
Holders of record of 25% or more of the Preferred Securities (based upon their
aggregate Liquidation Amount), but the Property Trustee may in its discretion
make such further inquiry or investigation into such facts or matters as it may
see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents, custodians,
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nominees or attorneys or an Affiliate, provided that the Property
Trustee shall be responsible for its own negligence with respect to
selection of any agent or attorney appointed by it hereunder but shall
not be responsible for any misconduct or negligence on the part of such
Person;
(ii) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders of the Trust Securities, which instructions may only be given
by the Holders of the same proportion in Liquidation Amount of the
Trust Securities as would be entitled to direct the Property Trustee
under the terms of the Trust Securities in respect of such remedy,
right or action, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are received, and
(iii) shall be protected in conclusively relying on or acting in
accordance with such instructions; and
(iii) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
(j) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders which instructions may
only be given by the Holders of the same proportion in Liquidation Amount of the
Securities as would be entitled to direct the Property Trustee under the terms
of the Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in conclusively relying
on or acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Declaration; and
(l) the Property Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without negligence or
willful misconduct, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Declaration.
No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
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SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall not
be taken as the statements of the Trustees, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the Debentures. The
Trustees make no representations as to the value or condition of the Trust
Property or any part thereof. The Trustees make no representations as to the
validity or sufficiency of this Declaration or the Trust Securities.
SECTION 8.5. May Hold Securities. Except as provided in the definition
of the term "OUTSTANDING" in Article 1, any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Section 8.8 and 8.12, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay each of the Trustees from time to time such compensation for
all services rendered by such Trustee hereunder as the Depositor and such
Trustee may agree upon in writing 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);
(b) except as otherwise expressly provided herein, to reimburse each
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith;
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) the Bank, (ii) each Trustee, (iii) any Affiliate of the Bank
or any Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Trustee, and (iv) any employee or agent of the
Trust or its Affiliates (each referred to herein as an "INDEMNIFIED PERSON")
from and against any loss, damage, liability, tax, penalty, expense or claim of
any kind or nature whatsoever incurred by such Indemnified Person by reason of
the creation, operation, dissolution or termination of the Trust or any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim to the extent incurred by
such Indemnified Person by reason of its own negligence or willful misconduct
with respect to such acts or omissions;
(d) to the fullest extent permitted by applicable law, to advance, from
time to time, prior to the final disposition of any claim, demand, action, suit
or proceeding for which indemnification is authorized pursuant to subsection (c)
above, any expenses (including reasonable
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legal fees) incurred by an Indemnified Person in defending such claim, demand,
action, suit or proceeding upon receipt by the Depositor of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in subsection (c) above. This indemnification shall survive the
termination of this Declaration.
(e) no Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.6; and
(f) The obligations to indemnify and hold harmless, to advance expenses
and to provide reimbursement and pay compensation as set forth in this Section
8.6 shall survive the resignation or removal of the Property Trustee or the
Delaware Trustee and the satisfaction and discharge of this Declaration.
SECTION 8.7. Property Trustee Required; Eligibility of Trustees. (a)
There shall at all times be a Property Trustee, which is a corporation organized
and doing business under the laws of the United States of America or of any
State, Territory or the District of Columbia, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal, state, territorial or District of Columbia authority hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $100,000,000. 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, 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
SECTION 8.8. Disqualification: Conflicting Interest. The Property
Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Property Trustee from filing
with the Commission the application referred to in the second to last paragraph
of Section 310(b) of the Trust Indenture Act. The Indenture and the
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Guarantee shall be deemed to be specifically described in this Declaration for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 8.9. Resignation and Removal; Appointment of Successor. (a)
Subject to Sections 8.9(b) and 8.9(c), Trustees (the "RELEVANT TRUSTEE") may be
appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Depositor; and
(ii) after the issuance of any Securities, (1) if the Property
Trustee or the Delaware Trustee, by the Administrative Trustees and (2)
if an Administrative Trustee, by vote of the Holders of a majority in
Liquidation Amount of the Common Securities voting as a class.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the qualifications
to act as a Property Trustee under Section 8.7 (a "SUCCESSOR PROPERTY TRUSTEE")
has been appointed and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Trust, the Depositor and
the removed Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 8.9(a) until a successor possessing the qualifications
to act as Delaware Trustee under Section 8.7 (a "SUCCESSOR DELAWARE TRUSTEE")
has been appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Depositor and
the removed Delaware Trustee.
(d) A Trustee appointed to office shall hold office until his, her or
its successor shall have been appointed or until his, her or its death, removal,
resignation, dissolution or liquidation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
signed by the Trustee and delivered to the Depositor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(1) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
(2) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the holders of the Securities; and
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(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Depositor and the resigning Delaware Trustee.
(e) The Administrative Trustees shall use their best efforts to
promptly appoint a Successor Property Trustee or Successor Delaware Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with Section 8.9(d).
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
8.9 within 60 days after delivery pursuant to this Section 8.9 of an instrument
of resignation or removal, the Property Trustee or Delaware Trustee resigning or
being removed, as applicable, may petition any court of competent jurisdiction
for appointment of a Successor Property Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(h) The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
(i) Notwithstanding the foregoing or any other provision of this
Declaration, in the event any Administrative Trustee or a Delaware Trustee who
is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death, incompetence or
incapacity may be filled by (a) the unanimous act of the remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or the Delaware Trustee, as
the case may be, set forth in Section 8.7).
(j) The indemnity provided to a Trustee under Section 8.6 shall survive
any Trustee's resignation or removal.
SECTION 8.10. Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of
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the Depositor or the successor Trustee, such retiring Trustee shall, upon
payment of all amounts due to it under this Declaration, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and if the Property Trustee is the resigning
Trustee shall duly assign, transfer and deliver to the successor Trustee all
property and money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee shall execute
and deliver an amendment hereto wherein each successor Relevant Trustee shall
accept such appointment and which (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 and (b) shall add to or change any of the provisions
of this Declaration as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of all amounts due to it under this
Declaration, 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.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Relevant Trustee
shall be a party, or any corporation 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 corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
SECTION 8.12. Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust
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Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor).
SECTION 8.13. Reports by Property Trustee. (a) To the extent required
by the Trust Indenture Act, within 60 days after May 15 of each year commencing
with May 15, 1998 the Property Trustee shall transmit to all Securityholders in
accordance with Section 10.8 and to the Depositor, a brief report dated as of
such 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 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 Property Trustee has
not complied in any material respects with such obligations, a
description of such noncompliance; and
(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this
Declaration as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of such report shall, at the time of such transmissions to
Holders, be filed by the Property Trustee with each national securities exchange
or self-regulatory organization upon which the Trust Securities are listed, with
the Commission and with the Depositor.
SECTION 8.14. Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 8.15. Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c) (1) of
the Trust Indenture Act shall be given in the form of an Officer's Certificate.
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SECTION 8.16. Number of Trustees. (a) The number of Trustees shall be
five, provided that the Holder of all of the Common Securities by written
instrument may increase or decrease the number of Administrative Trustees. The
Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.16(a), or if the
number of Trustees is increased pursuant to Section 8.16(a), a vacancy shall
occur.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.9. The Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Declaration), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration.
SECTION 8.17. Delegation of Power. (a) Any Administrative Trustee may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.7(a), including any registration
statement or amendment thereof filed with the Commission, or making any other
governmental filing.
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
ARTICLE 9
DISSOLUTION, LIQUIDATION, TERMINATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date. Unless earlier
dissolved, the Trust shall automatically dissolve on April 1, 2028 (the
"EXPIRATION DATE").
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;
(b) the distribution of Debentures to the Holders of the Trust
Securities, if the Depositor has given written direction to the Property Trustee
to terminate the Trust (which direction is optional and wholly within the
discretion of the Depositor);
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(c) the occurrence of a Special Event except in the case of a Tax Event
following which the Depositor has elected (i) to pay any Additional Sums (in
accordance with Section 4.4) such that the net amount received by Holders of
Preferred Securities not otherwise redeemed in respect of Distributions are not
reduced as a result of such Tax Event and the Depositor has not revoked any such
election or failed to make such payments or (ii) to redeem all of the Debentures
pursuant to Section 4.4(a);
(d) the redemption, conversion or exchange of all of the Trust
Securities;
(e) an order for dissolution of the Trust shall have been entered by a
court of competent jurisdiction; and
(f) receipt by the Property Trustee of written notice from the
Depositor at any time (which direction is optional and wholly within the
discretion of the Depositor) of its intention to dissolve the Trust and
distribute the Debentures in exchange for the Preferred Securities.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust Securities
pursuant to Section 4.2, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of all expenses
owed by the Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4. Liquidation. (a) If an Early Dissolution Event specified
in clause (a), (b), (c), (e) or (f) of Section 9.2 occurs or upon the Expiration
Date, the Trust shall be liquidated by the Administrative Trustees as
expeditiously as the Administrative Trustees determine to be possible by
distributing, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, to each Securityholder an aggregate principal amount of Debentures
equal to the aggregate Liquidation Amount of Trust Securities held by such
Holder, subject to Section 9.4(d). Notice of liquidation shall be prepared by or
on behalf of the Administrative Trustees and 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 as it appears in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent an aggregate principal amount of Debentures equal
to the aggregate Liquidation Amount of Preferred Securities held by
such Holder; and
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(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 9.4(d) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust 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) the Clearing Agency or its nominee, as the record holder of
such Trust Securities, will receive a registered Rule 144A Global Certificate or
certificates representing the Debentures to be delivered upon such distribution
and (iii) any Trust Securities Certificates not held by or on behalf of the
Clearing Agency will be deemed to represent an aggregate principal amount of
Debentures equal to the aggregate Liquidation Amount of Preferred Securities
held by such Holders, and bearing accrued and unpaid interest in an amount equal
to the accrued and unpaid Distributions on such Trust Securities until such
certificates are presented to the Property Trustee for transfer or reissuance.
(d) In the event that, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practicable, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up and terminated, by the Property Trustee after paying or
making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after paying or making reasonable
provision to pay all claims and obligations of the Trust in accordance with
Section 3808(e) of the Business Trust Act, an amount equal to the Liquidation
Amount per Trust Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "LIQUIDATION DISTRIBUTION"). If, upon any
such dissolution, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets legally available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such dissolution pro
rata (determined as aforesaid) with Holders of Preferred Securities, except
that, if an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
(e) As soon as is practicable after the occurrence of an Early
Dissolution Event or the Expiration Date and upon completion of the winding up
of the Trust, the Trustees (each of whom
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is authorized to take such action) shall terminate the Trust by filing a
certificate of cancellation with the Secretary of State of the State of
Delaware.
SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except as
described below. The Trust may, at the request of the Depositor, with the
consent of the Administrative Trustees and without the consent of the Property
Trustee, the Delaware Trustee or the Holders of the Trust Securities, merge with
or into, consolidate, amalgamate, be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to a trust organized as
such under the laws of any state; provided, however, that (i) such successor
entity either (a) expressly assumes all of the obligations of the Trust with
respect to the Trust Securities or (b) substitutes for the Preferred Securities
other securities having substantially the same terms as the Preferred Securities
(the "SUCCESSOR SECURITIES"), so long as the Successor Securities rank the same
as the Preferred Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the Depositor
expressly appoints a trustee of such successor entity possessing the same powers
and duties as the Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any, (iv)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Preferred Securities (including any
Successor Securities) in any material respect (other than with respect to any
dilution of the holders' interest in the new entity), (vi) such successor entity
has a purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an opinion from counsel to the Trust (which may be
counsel to the Depositor) having a national tax and securities law practice
(which opinion shall not have been rescinded) to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the holders
of the Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the holders' interest in the
new entity) and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an "investment company" under the 1940
Act, and (viii) the Depositor or any permitted successor or assignee owns all of
the Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of holders of 100% in aggregate Liquidation Amount of
the Preferred Securities, consolidate, amalgamate, merge with or into, be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would for
United States federal income tax purposes cause (i) the holders of the Preferred
Securities to
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recognize gain or loss or (ii) the Trust or the successor entity to be
classified as other than a grantor trust.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders. The death or
incapacity of any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Declaration, nor entitle the
legal representatives or heirs of such person or any Securityholder for such
person to claim an accounting, take any action or bring any proceeding in any
court for a partition or winding-up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
SECTION 10.2. Amendment. (a) Notwithstanding anything in this
Declaration to the contrary, without the consent of the Depositor, this
Declaration may not be amended in a manner which imposes any additional
obligation on the Depositor.
(b) In the event that any amendment to this Declaration is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(c) None of the Bank, the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Declaration, including to
this Section 10.2(c), which affects its own rights, power, duties, obligations
or immunities under this Declaration without its prior written consent, and any
such amendment or purported amendment, including to this Section 10.2(c), shall
be void and ineffective without such prior written consent, which consent may be
withheld in its sole discretion. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officer's Certificate stating that any
amendment to this Declaration is in compliance with this Declaration.
SECTION 10.3. Separability. In case any provision in this Declaration
or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. GOVERNING LAW. THIS DECLARATION AND THE RIGHTS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY
SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS 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, TO THE FULLEST EXTENT PERMITTED BY LAW, THERE SHALL NOT BE APPLICABLE TO
THE PARTIES HEREUNDER OR THIS DECLARATION ANY PROVISION OF THE LAWS (COMMON OR
STATUTORY) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS THAT RELATE TO OR
REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE
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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 AUTHORITIES AND POWERS OF THE
TRUSTEES HEREUNDER AS SET FORTH OR REFERENCED IN THIS DECLARATION. SECTION 3540
OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.
SECTION 10.5. Payments Due on Non-Business Day. If the date fixed for
any payment on any Trust Security shall be a day which is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day (except as otherwise provided in Section
4.1(a) and Section 4.2(d)), with the same force and effect as though made on the
date fixed for such payment, and no interest shall accrue thereon for the period
after such date.
SECTION 10.6. Successors. This Declaration shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article 8 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 10.7. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Declaration
SECTION 10.8. Reports, Notices and Demands. Any report, notice, demand
or other communications which by any provision of this Declaration is required
or permitted to be given or served to or upon any Securityholder 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, and (b) in the case of the Holder of the Common Securities, to such
Holder as such Holder's name and address may appear on the Securities Register;.
Any notice to Preferred Securityholders shall also be given to such
Owners as have, within two years preceding the giving of such notice, filed
their names and addresses with the Property
62
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Trustee for that purpose. Such notice, demand or other communication to or upon
a Securityholder shall be deemed to have been sufficiently given, or made, for
all purposes, upon hand delivery, mailing or transmission .
Any notice, demand or other communication which by any provision of
this Declaration is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Administrative Trustees
shall be given in writing addressed (until another address is published by the
Trust) as follows: (a) with respect to the Property Trustee, to Wilmington Trust
Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware,
19890-0001, Attention: Corporate Trust Administration, (b) with respect to the
Delaware Trustee, to Wilmington Trust Company, Rodney Square North, 1100 North
Market Street, Wilmington, Delaware, 19890-0001, Attention: Corporate Trust
Administration, with a copy of any such notice to the Property Trustee at its
address above, and (c) with respect to the Administrative Trustees, to them at
the address for notices to the Depositor, marked "Attention: General Counsel".
Such notice, demand or other communication to or upon the Trust or the Property
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
SECTION 10.9. Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
9, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "BANKRUPTCY LAWS") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, 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 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 stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Declaration.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Declaration is subject to the provisions of the Trust Indenture Act
that are required to be part of this Declaration and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is the trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Declaration by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Declaration modifies or excludes any provision
of the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Declaration as so modified or to be
excluded, as the case may be.
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(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.11. ACCEPTANCE OF TERMS OF DECLARATION, GUARANTEE AND
INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND
AGREEMENT TO SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
SECTION 10.12. Counterparts. This Declaration may contain more than one
counterpart of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees and the Depositor to one of
such counterpart signature pages. All of such counterpart signature pages shall
be read as though one, and they shall have the same force and effect as though
all of the signers had signed a single signature page.
ARTICLE 11
REGISTRATION RIGHTS
SECTION 11.1. Registration Rights. The Holders of the Preferred
Securities, the Debentures and the Guarantee and the shares of Common Stock of
the Depositor issuable upon conversion of the Debentures and/or the Preferred
Securities (collectively, the "REGISTRABLE SECURITIES") are entitled to the
benefits of a Registration Rights Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to
be duly executed as of the day and year first above written.
SUIZA FOODS CORPORATION,
as Depositor
By: /s/ Gregg L. Engles
----------------------------------------
Name: Gregg L. Engles
Title: Chairman & CEO
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Property Trustee
By: /s/ Patricia A. Evans
----------------------------------------
Name: Patricia A. Evans
Title: Financial Services Officer
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Patricia A. Evans
----------------------------------------
Name: Patricia A. Evans
Title: Financial Services Officer
/s/ Tracy L. Noll
-------------------------------------------
Tracy L. Noll,
not in his individual capacity but solely as
Administrative Trustee
/s/ J. Michael Lewis
-------------------------------------------
J. Michael Lewis,
not in his individual capacity but solely as
Administrative Trustee
/s/ Joseph B. Armes
--------------------------------------------
Joseph B. Armes,
not in his individual capacity but solely as
Administrative Trustee
65
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EXHIBIT A
CERTIFICATE OF TRUST
OF
SUIZA CAPITAL TRUST II
A-1
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EXHIBIT B
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGE OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT
WILL NOT RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE
COMMON STOCK, IF ANY, ISSUABLE UPON CONVERSION OR EXCHANGE OF SUCH SECURITY
EXCEPT (A) TO SUIZA FOODS CORPORATION OR A SUBSIDIARY THEREOF, (B) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, OR (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(k)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR THE PREFERRED SECURITIES
(OR, IF THIS CERTIFICATE EVIDENCES COMMON STOCK, SUCH HOLDER MUST FURNISH TO THE
TRANSFER AGENT), TOGETHER WITH SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS SUIZA FOODS CORPORATION, THE TRUSTEE OR THE TRANSFER AGENT, AS
APPLICABLE, MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT.
B-1
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THIS COMMON SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO
AN EXEMPTION FROM REGISTRATION
OR AN EFFECTIVE REGISTRATION STATEMENT
Certificate Number Number of Common Securities
[ ] [ ]
Certificate Evidencing Common Securities
of
Suiza Capital Trust II
5 1/2% Trust Convertible Common Securities
(Liquidation Amount $50 per Common Security)
Suiza Capital Trust II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Suiza Foods
Corporation (the "Holder") is the registered owner of [ ] 5 1/2% Trust
Convertible Common Securities of the Trust representing undivided beneficial
interests in the assets of the Trust (the "Common Securities"). In accordance
with Section 5.10 of the Declaration (as defined below) the Common Securities
are not transferable (except in connection with mergers, acquisitions,
consolidations, or other transactions provided for in Section 8.1 of the
Indenture (as defined in the Amended and Restated Declaration of Trust dated as
of March 24, 1998, as the same may be amended from time to time (the
"DECLARATION")) and the pledge of the Common Securities by the Depositor to
secure indebtedness) and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to, the terms and provisions of, the Declaration, including the
designation of the terms of the Common Securities as set forth therein. The
Holder is entitled to the benefits of the Common Securities Guarantee Agreement
entered into by Suiza Foods Corporation, a Delaware corporation, dated as of
March 24, 1998 (the "Guarantee"), to the extent provided therein. The Trust will
furnish a copy of the Declaration and the Guarantee to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
As set forth in the Declaration, where an Event of Default has occurred
and is continuing, the rights of Holders of Common Securities to payment in
respect of Distributions and payments upon Liquidation, redemption or otherwise
are subordinated to the rights of payment of Holders of the Preferred
Securities.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
B-2
74
By acceptance of this Certificate, the Holder agrees to treat, for
United States federal income tax purposes, the Debentures as indebtedness and
the Common Securities as evidence of undivided beneficial ownership in the
Debentures.
B-3
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IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this 24th day of March, 1998.
SUIZA CAPITAL TRUST II
By:
------------------------------
Name:
As Administrative Trustee
B-4
76
EXHIBIT C
{IF THE PREFERRED SECURITY IS TO BE A RULE 144A GLOBAL CERTIFICATE,
INSERT - This Preferred Security is a Book-Entry Preferred Securities
Certificate within the meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company ("DTC") or a nominee of
DTC. This Preferred Security is exchangeable for Preferred Securities registered
in the name of a person other than DTC or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by DTC to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC) may be
registered except in limited circumstances.}
Unless this Preferred Security is presented by an authorized
representative of DTC (55 Water Street, New York), to Suiza Capital Trust II or
its agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of DTC and any payment hereon 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 A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.
Certificate Number Number of Preferred Securities
--- CUSIP NO.
Certificate Evidencing Preferred Securities
of
Suiza Capital Trust II
5 1/2% Trust Convertible Preferred Securities
(Liquidation Amount $50 per Preferred Security)
Suiza Capital Trust II, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
_____________________ (the "Holder") is the registered owner of _____________
preferred securities of the Trust representing an undivided beneficial interest
in the assets of the Trust and designated the Suiza Capital Trust II 5 1/2%
Trust Convertible Preferred Securities (Liquidation Amount $50 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Declaration (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of Trust, dated as of March 24, 1998 as the same may be
amended from time to time (the "Declaration") including the designation of the
terms of Preferred Securities as set forth therein. The Holder is entitled to
the benefits of the Guarantee Agreement entered into
C-1
77
by Suiza Foods Corporation, a Delaware corporation, and Wilmington Trust
Company, as Guarantee Trustee, dated as of March 24, 1998 (the "Guarantee"), to
the extent provided therein. The Trust will furnish a copy of the Declaration
and the Guarantee to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
C-2
78
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate.
SUIZA CAPITAL TRUST II
By:
-----------------------------
Name:
an Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated:
WILMINGTON TRUST COMPANY,
as Property Trustee
By:
-----------------------------
Authorized Signatory
C-3
79
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 Trust.
The agent may substitute another to act for him or her.
Date:
--------------------------------
Signature:
---------------------------
(Sign exactly as our name appears on the other side of this
Preferred Security Certificate)
C-4
80
{TO BE ATTACHED TO RULE 144A GLOBAL CERTIFICATE}
SCHEDULE A
The initial number of Preferred Securities represented by this Rule
144A Global Certificate shall be _____________. The following increases or
decreases in the number of Preferred Securities represented by this Rule 144A
Global Certificate have been made:
=====================================================================================================================
Date Made Amount of increase Amount of increase Number of Preferred Signature of
in number of in number of Securities authorized officer
Preferred Securities Preferred Securities represented by this of Trustee or
represented by this represented by this Global Certificate Securities Custodian
Rule 144A Global Rule 144A Global following such
Certificate Certificate decrease or increase
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
=====================================================================================================================
C-5
81
EXHIBIT D -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to the Declaration)
Wilmington Trust Company
as Property Trustee of
Suiza Capital Trust II
Rodney Square North
1100 North Market Street
Wilmington, Delaware, 19890-0001
Attention: Corporate Trust Administration
Re: % Trust Convertible Preferred Securities (Liquidation Amount $50 per
Preferred Security) of Suiza Capital Trust II (the "Securities")
-------------------------------------------------------------------------
Reference is made to the Amended and Restated Declaration of Trust,
dated as of March 24, 1998 (the "Declaration"), among Suiza Foods Corporation
(the "Company"), and the Trustees named therein and the holders, from time to
time, of undivided beneficial interests in the Trust. Terms used herein and
defined in the Declaration or Rule 144 under the U.S. Securities Act of 1933, as
amended (the "Securities Act") are used herein as so defined.
This certificate relates to ________ shares of Securities, which are
evidenced by the following certificate(s) (the "Specified Securities"):
CUSIP No(s).
-------------------------------------
CERTIFICATE No(s).
--------------------------------
The Person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Rule 144A Global Certificate,
they are held through the Clearing Agency or participant (a "Clearing Agency")
in the name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Rule 144A Global Certificate, they are
registered in the name of the Undersigned, as or on behalf of the Owner.
D-1
82
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A or Rule 144 under the Securities Act and all applicable securities laws of
the states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
RULE 144 TRANSFERS. IF THE TRANSFER IS BEING EFFECTED PURSUANT TO
RULE 144:
(A) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule 144)
has elapsed since the Specified Securities were last acquired from the
Trust or from an affiliate of the Trust, whichever is later, and is
being effected in accordance with the applicable amount, manner of
sale, and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least three years has elapsed since the Specified Securities were last
acquired from the Trust or from an affiliate of the Trust, whichever is
later, and the Owner is not, and during the preceding three months has
not been, an affiliate of the Trust.
This certificate and the statements contained herein are made for your
benefit and benefit of the Trust and the Trustees of the Trust.
Dated:
------------------------------------------
(Print the name of the Undersigned, as such term is defined in the
second paragraph of this certificate.)
By:
------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the
title of the person signing on behalf of the Undersigned must be
stated.)
D-2
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EXHIBIT E
IRREVOCABLE NOTICE OF CONVERSION
(pursuant to Section 4.3)
To: Wilmington Trust Company
as Property Trustee of
Suiza Capital Trust II
and Conversion Agent
The undersigned owner of these Preferred Securities hereby irrevocably
exercises the option to convert these Preferred Securities, or the portion below
designated, into Common Stock, par value $0.01 of SUIZA FOODS CORPORATION (the
"Suiza Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust of Suiza Capital Trust II (the "Declaration"), dated as of
March 24, 1998, by Suiza Foods Corporation, as Depositor, the Trustees of the
Trust named therein, and the Holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to the Declaration. Pursuant to the
aforementioned exercise of the option to convert these Preferred Securities, the
undersigned hereby directs the Conversion Agent to (i) exchange such Preferred
Securities for a portion of the Debentures held by the Trust (at the rate of
exchange specified in the terms of the Preferred Securities set forth in the
Declaration) and (ii) immediately convert such Debentures on behalf of the
undersigned, into Suiza Common Stock (at the conversion rate specified in the
terms of the Preferred Securities set forth in the Declaration). Unless
otherwise defined herein, capitalized terms used in this Notice shall have the
respective meanings assigned to such terms in the Declaration.
The undersigned does also hereby direct the Conversion Agent that the
shares of Suiza Common Stock issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares of Suiza Common Stock are to be issued in the name
of a person other than the undersigned, the undersigned will pay all transfer
taxes payable with respect thereto.
Any holder, upon the exercise of its conversion rights in accordance
with the terms of the Declaration and the Preferred Securities, agrees to be
bound by the terms of the Registration Rights Agreement relating to the Suiza
Common Stock issuable upon conversion of the Preferred Securities.
Date:
-----------------------
in whole in part
--------- ------
E-1
84
Number of Preferred Securities
to be converted: _____________-________
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in which
the shares of Suiza Common Stock are to
be issued, along with the address or
addresses of such person or persons
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and Social
Security or Other Identifying Number
----------------------------------------
----------------------------------------
----------------------------------------
Signature Guarantee:*
-------------------
- -----------------------------
* (Signature must be guaranteed by an institution which is a member of
the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) the New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.)
E-2