1
EXHIBIT 4.6
===============================================================================
FORM OF
AMENDED AND RESTATED DECLARATION
OF TRUST
ATI FINANCING()
Dated as of __________, 199( )
===============================================================================
2
CROSS-REFERENCE TABLE(*)
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- --------------------
310(a)............................................. 5.3(a)
310(b)............................................. 5.3(d)
310(c)............................................. Inapplicable
311(a)............................................. 2.2(b)
311(b)............................................. 2.2(b)
311(c)............................................. Inapplicable
312(a)............................................. 2.2(a)
312(b)............................................. 2.2(c)
312(c) ............................................ 2.2(d)
313................................................ 2.3
314(a)............................................. 2.4
314(b)............................................. Inapplicable
314(c)............................................. 2.5
314(d)............................................. Inapplicable
314(e) ............................................ 2.4
314(f)............................................. Inapplicable
315(a)............................................. 3.9(b)
315(c)............................................. 3.9(a)
315(d)............................................. 3.9(b)
315(e)............................................. 2.6(d)
316(a)............................................. Exhibit A, 2.6
315(b)............................................. 2.8
316(b)............................................. 2.6(e)
316(c)............................................. 3.6(e)
317(a)............................................. 3.8(g)
317(b)............................................. 3.8(h)
318(a)............................................. 2.1(c)
318(b)............................................. Inapplicable
318(c)............................................. 2.1(c)
- -----------------
(*) This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
-2-
3
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
ATI FINANCING ( )
_____ __, 199( )
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of , 199( ) by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, collectively the "Trustees"), AirTouch
Communications, Inc., a Delaware corporation, as trust sponsor, and by the
holders, from time to time, of undivided beneficial interests in the Trust to be
issued pursuant to this Declaration;
WHEREAS, the Trustees and the sponsor established a trust (the "Trust")
under the Delaware Business Trust Act pursuant to a Declaration of Trust, dated
as of , 199( ) (the "Original Declaration") and a Certificate of Trust filed
with the Secretary of State of Delaware on , 199( ), for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Subordinated Notes of the Subordinated Note Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
WHEREAS, all of the Trustees and the sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
1.1 DEFINITIONS
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) A term defined anywhere in this Declaration has the same meaning
throughout;
(c) All references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to time;
(d) All references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified;
-1-
4
(e) A term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f) A reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Appointment Event" means an event defined in the terms of the Preferred
Securities as set forth in Exhibit A, as such Exhibit A may be amended in
accordance with the terms of this Declaration, which entitles the Holders of a
Majority in Liquidation Amount of the Preferred Securities to appoint a Special
Regular Trustee.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Bankruptcy" means, with respect to an entity, (a) the entry by a court
having jurisdiction in the premises of a decree or order for relief in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidation, assignee,
custodian, trustee, sequestration (or similar official) of such entity or for
any substantial party of its property, or ordering the winding up or liquidation
of its affairs, if such decree or order shall remain unstayed and in effect for
a period of 60 consecutive days or (b) the commencement by such entity of a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or such entity's consent to the entry of an order
for relief in any involuntary case under any such law, or its consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestration (or similar official) of such entity or for
any substantial part of its property, or the making by such entity of any
general assignment for the benefit of creditors, or its failure generally to pay
its debts as they become due or the taking by such entity of any corporate
action in furtherance of any of the foregoing
"Business Day" means any day other than a day on which banking institutions
in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
DEL. C. Sections 3801 et seq., as it may be amended from time to time.
"Closing Date" means ____, 199( ).
"Code" means the Internal Revenue Code of 1986, as amended, and as may be
amended from time to time after the date hereof.
"Commission" means the Securities and Exchange Commission.
"Common Securities Guarantee" means the guarantee agreement dated as of ,
199( ) of the Sponsor in respect of the Common Securities.
"Common Security" has the meaning specified in Section 7.1.
"Covered Person" means:
(a) any officer, director, shareholder, partner, member, representative,
employee or agent of:
-2-
5
(i) the Trust; or
(ii) the Trust's Affiliates; and
(b) any Holder of Securities.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means DTC or its successor.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"DTC" means the Depositary Trust Company, the initial Depositary.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time or any successor legislation.
"Event of Default" in respect of the Securities means an Event of Default
(as defined in the Indenture) has occurred and is continuing in respect of the
Subordinated Notes.
"Global Preferred Security" means a certificate representing all or a
portion of the Preferred Securities issued hereunder, as the case may be, and
delivered to the Depositary in accordance with Section 9.4 and bearing the
legend set forth in Section 9.4.
"Holder" means a Person in whose name a Security is registered, such Person
being a beneficial owner within the meaning of the Business Trust Act.
"Indemnified Person" means:
(a) any Trustee;
(b) any Affiliate of any Trustee;
(c) any officers, directors, shareholders, members, partners, employees,
representatives or agents of any Trustee; or
(d) any employee or agent of the Trust or its Affiliates.
"Indenture" means the Subordinated Indenture dated as of _______, 199(_),
as supplemented by the First Supplemental Indenture dated as of __________,
199(_), each being between the Subordinated Note Issuer and _________________,
as trustee, as such Indenture may be further amended, supplemented or modified
in accordance with the provisions thereof.
-3-
6
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation Amount" means, with respect to a Preferred Security, $_______.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Exhibit A, as such exhibit may be amended or modified
in accordance with this Declaration.
"Majority in Liquidation Amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Securities voting together as a single class or, as the
context may require, Holder(s) of Preferred Securities or Common Securities
voting separately as a class, who vote Securities of a relevant class and the
aggregate Liquidation Amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of the Securities
voted by such Holders represents more than 50% of the above stated Liquidation
Amount of all Securities of such class. In determining whether the Holders of
the requisite amount of Preferred Securities have voted, Preferred Securities
which are owned by the Sponsor, the Trust or any other obligor on the Preferred
Securities or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Sponsor, the Trust or any
other obligor on the Preferred Securities shall be disregarded for the purpose
of any such determination.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by an Authorized Officer of such Person. To the extent required by the
Trust Indenture Act, 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 the officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation on which the statements or opinions contained in such Certificate
are based;
(c) a statement that, in the opinion of such officer, he or she has made
such examination or investigation as is necessary to enable such officer to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means an individual, a corporation, a partnership, a joint
venture, an association, a joint stock company, a trust, an unincorporated
organization, or a government or any agency, authority or political subdivision
thereof.
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of , 199( ) of the Sponsor in respect of the Preferred Securities.
-4-
7
"Preferred Security" has the meaning specified in Section 7.1.
"Pricing Agreement" means the pricing agreement between the Trust, the
Subordinated Note Issuer, and the underwriter(s) designated by the Regular
Trustees with respect to the offer and sale of the Preferred Securities.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Pro Rata" shall have the meaning accorded such term in paragraph 8 of
Exhibit A, as such Exhibit A may be amended from time to time in accordance with
this Declaration.
"Quorum" means a majority of the Regular Trustees or if there are only two
Regular Trustees, both of them.
"Register" means the books for the registration and transfer of Securities
which books are kept by the Trustee in accordance with Section 9.2.
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person which owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, the
chairman of the board of directors, the president, any vice-president, any
assistant vice-president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or assistant trust officer or any
other officer of the Property Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended, and as it
may be amended from time to time hereafter.
"66-2/3% in Liquidation Amount of the Securities" means Holder(s) of
Securities voting together as a single class or, as the context may require,
Holder(s) of Preferred Securities or Common Securities, voting separately as a
class, who vote Securities of a relevant class and the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions, to the date
upon which the voting percentages are determined) of the Securities voted by
such Holders represents 66-2/3% of the above-stated liquidation amount of all
Securities of such class. In determining whether the Holders of the requisite
amount of Preferred Securities have voted, Preferred Securities which are owned
by the Sponsor, the Trust or any other obligor on the Preferred Securities or by
any Person directly or indirectly controlling or controlled by or under direct
or indirect common
-5-
8
control with the Sponsor, the Trust or any other obligor on the Preferred
Securities shall be disregarded for the purpose of any such determination.
"Special Event" has the meaning set forth in the terms of the Securities
set forth in Exhibit A, as such Exhibit A may be amended or modified in
accordance with this Declaration.
"Special Regular Trustee" means a Regular Trustee appointed by the Holders
of a Majority in Liquidation Amount of the Preferred Securities in accordance
with Section 5.6(a)(ii)(B).
"Sponsor" means AirTouch Communication, Inc., a Delaware corporation, in
its capacity as sponsor of the Trust, or any permitted successor entity.
"Subordinated Note Issuer" means AirTouch Communication, Inc., a Delaware
corporation, in its capacity as issuer of the Subordinated Notes, or any
permitted successors or assigns under the Subordinated Indenture.
"Subordinated Note Trustee" means________________, as trustee under the
Indenture until a successor is appointed thereunder and thereafter means such
successor trustee.
"Subordinated Notes" means the series of Subordinated Notes to be issued by
the Subordinated Note Issuer under the Indenture to be purchased for the account
of and held by the Property Trustee pursuant to Section 3.6(c).
"Successor Property Trustee" means a successor Trustee possessing the
qualifications to act as Property Trustee under Section 5.3.
"10% in Liquidation Amount of the Securities" means Holder(s) of Securities
voting together as a single class or, as the context may require, Holder(s) of
Preferred Securities or Common Securities, voting separately as a class, who
vote Securities of a relevant class and the Liquidation Amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of the Securities voted by such Holders represents 10% of the
above stated Liquidation Amount of all Securities of such class. In determining
whether the Holders of the requisite amount of Preferred Securities have voted,
Preferred Securities which are owned by the Sponsor, the Trust or any other
obligor on the Preferred Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Sponsor, the Trust or any other obligor on the Preferred Securities shall be
disregarded for the purpose of any such determination.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended as
of the date of this Agreement.
-6-
9
"25% in Liquidation Amount of the Securities" means Holder(s) of Securities
voting together as a single class or, as the context may require, Holder(s) of
Preferred Securities or Common Securities, voting separately as a class, who
vote Securities of a relevant class and the Liquidation Amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of the Securities voted by such Holders represents 25% of the
above stated Liquidation Amount of all Securities of such class. In determining
whether the Holders of the requisite amount of Preferred Securities have voted,
Preferred Securities which are owned by the Sponsor, the Trust or any other
obligor on the Preferred Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Sponsor, the Trust or any other obligor on the Preferred Securities shall be
disregarded for the purpose of any such determination.
"Underwriting Agreement" means the Underwriting Agreement for the offering
and sale of Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
2.1 TRUST INDENTURE ACT; APPLICATION.
(a) So long as the Preferred Securities are outstanding, this Declaration
shall be 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, provided, however, that any provisions of the Trust
Indenture Act which may in accordance therewith be excluded, are hereby
excluded. At such time as the Preferred Securities are no longer outstanding,
the Trust Indenture Act shall no govern this Declaration and all provisions
requiring compliance with specified provisions of the Trust Indenture Act shall
be of no further force and effect.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act;
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control; and
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
2.2 LISTS OF HOLDERS OF SECURITIES.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee not less than 45 days nor more than 60 days
after each date (month and day) that is a Distribution payment date, but in no
event less frequently than semiannually, and at such other times as the Property
Trustee may request in writing, within 30 days after receipt by the Sponsor and
Regular Trustees of any such request, a list in such form as the Property
Trustee may reasonably require containing all the information in the possession
or control of the Sponsor and the Regular Trustees, or any of its Paying Agents
other than the Property Trustee, as to the names and addresses of the Holders of
Securities, obtained since the date as of which the next previous list, if any,
was furnished, excluding from any such list the
-7-
10
names and addresses received by the Property Trustee in its capacity as
registrar (if so acting). Any such list may be dated as of a date not more than
15 days prior to the time such information is furnished and need not include
information received after such date.
(b) The Property Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Securities (1)
contained in the most recent list furnished to it as provided in this Section
2.2, (2) received by the Property Trustee in the capacity of Paying Agent or
registrar (if so acting) and (3) filed with the Property Trustee within the two
preceding years as provided for in Section 2.2(a). The Property Trustee may
destroy any list furnished to it as provided in this Section 2.2 upon receipt of
a new list so furnished.
(c) If three or more Holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Property Trustee, and furnish to the
Property Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities with respect to their rights under this Declaration or
under such Securities, and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Property
Trustee shall, within five Business Days after the receipt of such application,
at its election, either:
(1) afford such applicants access to the information preserved at
the time by the Property Trustee in accordance with the provisions of
this Section 2.2 or
(2) inform such applicants as to the approximate number of Holders
of Securities whose names and addresses appear in the information
preserved at the time by the Property Trustee in accordance with the
provisions of subsection (b) of this Section 2.2, and as to the
approximate cost of mailing to such Holders the form of proxy or other
communications, if any, specified in such application.
If the Property Trustee shall elect not to afford such applicants
access to such information, the Property Trustee shall, upon the written request
of such applicants, mail to each of the Holders of Securities whose name and
address appear in the information preserved at the time by the Property Trustee
in accordance with the provisions of subsection (b) of this Section 2.2, a copy
of the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Property Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Property Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Property Trustee, such mailing would be
contrary to the best interests of the Holders of Securities or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Property Trustee shall mail
copies of such material to all such Holders of Securities with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(d) Each and every Holder of the Securities, by receiving and holding the
same, agrees with the Sponsor, the Regular Trustees, and the Property Trustees
that none of them nor any Paying Agent nor any registrar shall be held account-
able by reason of the disclosure of any such information as to the names and
-8-
11
addresses of the Holders of Securities in accordance with the provisions of
subsection (c) of this Section 2.2, regardless of the source from which such
information was derived, and that the Property Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (c).
(e) The Property Trustee shall comply with its obligations under Section
311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
2.3 REPORTS BY THE PROPERTY TRUSTEE.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Securities such reports as are required by Section
313(a), (b) and (c) of the Trust Indenture Act, if any, in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act.
2.4 PERIODIC REPORTS TO PROPERTY TRUSTEE.
Each of the Sponsor, the Subordinated Note Issuer, the Regular Trustees and
any other obligor on behalf of the Trust shall provide to the Property Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
2.5 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
Each of the Sponsor, the Subordinated Note Issuer and the Regular 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 which 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) may be given in the form of an Officer's
Certificate.
2.6 EVENTS OF DEFAULT; WAIVER.
The occurrence and continuance of an Event of Default under the Indenture
with respect to the Subordinated Notes shall constitute an Event of Default
hereunder.
(a) The Holders of a Majority in Liquidation Amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default in respect of the Preferred Securities and its
consequences provided that if the underlying Event of Default under the
Indenture :
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of (1) Holders (as such term is
defined in the Subordinated Indenture) of Subordinated Notes representing a
specified percentage greater than a majority in principal amount of the
Subordinated Notes or (2) each Holder of Subordinated Notes, the Event of
Default under this Declaration may only be waived by, in the case of clause (1)
hereof, the vote of Holders of Preferred Securities representing such specified
percentage of the aggregate liquidation amount of the Preferred Securities or,
in the case of clause (2) hereof, each Holder of Preferred Securities.
-9-
12
(b) Upon such waiver by the Holders of a Majority in Liquidation Amount
meeting the requirements of the foregoing subsections (a)(ii) or (a)(ii) of this
Section 2.6, any such default or resulting Event of Default shall cease to exist
and 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 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. Each Holder of Common Securities will be deemed to have
waived any Event of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the Preferred
Securities have been cured, waived or otherwise eliminated and until such Events
of Default have been so cured, waived or otherwise eliminated, the Property
Trustee will be deemed to be acting solely on behalf of the Holders of the
Preferred Securities and only the Holders of the Preferred Securities will have
the right to direct the Property Trustee in accordance with the terms of the
Securities. Subject to the foregoing provisions of this Section 2.6(b) upon such
waiver, any such default shall cease to exist and any Event of Default with
respect to the Common 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.
(c) A waiver of any Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the applicable Liquidation Amount of
Preferred Securities, constitutes a waiver of the corresponding Event of Default
under this Declaration.
(d) Limitation on Suits by Holders. All parties to this Declaration agree,
and each Holder of any Security by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Declaration, or in any
suit against the Property Trustee for any action taken or omitted by it as
Property Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 2.6(d) shall not apply to any suit instituted by the
Property Trustee, to any suit instituted by any Holder of Securities, or group
of such Holders, holding in the aggregate more than 10% percent in Liquidation
Amount of the Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or any interest or premium on any
Security, on or after the due date expressed in such Security or for such
interest (or in the case of any redemption, on or after the Redemption Date).
(e) No Holder of any Preferred Security or of any Common Security shall
have any right by virtue or by availing of any provision of this Declaration to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Declaration or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such Holder previously shall
have given to the Property Trustee written notice of a continuing Event of
Default, as hereinbefore provided, and unless also the Holders of not less than
25% in Liquidation Amount of the Preferred Securities or of the Common
Securities, as the case may be, then outstanding shall have made written request
upon the Property Trustee to institute such action, suit or proceeding in its
own name as Property Trustee hereunder and shall have offered to the Property
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby (including the reasonable fees
of counsel for the Property Trustee), and the Property Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the
Property Trustee pursuant to
-10-
13
this 2.2(e); it being understood and intended, and being expressly covenanted by
the taker and Holder of every Security with every other taker and Holder and the
Property Trustee, that no one or more Holders of Securities shall have any right
in any manner whatever by virtue or by availing of any provision of this
Declaration to affect, disturb or prejudice the rights of the Holders of any
other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Declaration, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities. For the protection and enforcement
of the provisions of this Section 2.2(d), each and every Holder and the Property
Trustee shall be entitled to such relief as can be given either at law or in
equity.
(f) The provisions of Section 315(e) of the Trust Indenture Act shall be
excluded from this Declaration.
Notwithstanding any other provisions in this Declaration, the right of any
Holder of any Security to receive payment of the Distributions on such Security
on or after the respective due dates expressed in such Security (or, in the case
of redemption, on or after the date fixed for redemption), or to institute suit
for the enforcement of any such payment on or after such respective dates shall
not be impaired or affected without the consent of such Holder.
2.7 EVENT OF DEFAULT; NOTICE
(a) The Property Trustee shall, within 90 days after the occurrence of an
Event of Default hereunder, give to the Holders of the Securities notice of such
Event of Default known to the Trustee unless such Event of Default shall have
been cured, remedied or waived before the giving of such notice (the term "Event
of Default" for the purposes of this Section 2.7(a) being hereby defined to be
an Event of Default irrespective of the giving of written notice specified
therein); provided, that except in the case of an Event of Default resulting
from the failure of payment of the principal of or interest on any of the
Subordinated Notes, the Property Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Property Trustee
in good faith determines that the withholding of such notice is in the interest
of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) A default under Sections 6.01(a) and (b) of the Indenture; or
(ii) Any default as to which the Property Trustee shall have received
written notice or a Responsible Officer charged with the administration of the
Declaration shall have obtained written notice of.
(c) The Sponsor and the Regular Trustees covenant that, as soon as is
practicable, they will furnish the Property Trustee notice of any event which is
an Event of Default or which with the giving of notice or the passage of time or
both would constitute an Event of Default which has occurred and is continuing
on the date of such notice, which notice shall set forth the nature of such
event and the action which the Sponsor proposes to take with respect thereto.
ARTICLE III
ORGANIZATION
3.1 NAME.
-11-
14
The Trust is named "ATI Financing ( )", as such name may be modified from
time to time by the Regular Trustees following written notice to the Holders of
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
3.2 OFFICE.
The address of the principal office of the Trust is One California Street,
San Francisco, California 94111. On ten Business Days written notice to the
Holders of Securities, the Regular Trustees may designate another principal
office.
3.3 PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire the Subordinated
Notes, and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would (i) cause the Trust to be classified for United States federal income tax
purposes as an association taxable as a corporation or a partnership or (ii)
cause each Holder of Securities not to be treated as owning an undivided
beneficial interest in the Subordinated Notes at any time the Securities are
outstanding.
3.4 AUTHORITY.
Subject to the limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee in
accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the Trust, no person
shall be required to inquire into the authority of the Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration.
3.5 TITLE TO PROPERTY OF THE TRUST.
Except as provided in Section 3.8 with respect to the Subordinated Notes
and the Property Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The Holders
shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.
3.6 POWERS AND DUTIES OF THE REGULAR TRUSTEES.
The Regular Trustees shall have the exclusive power and authority and duty
to cause the Trust to engage in the following activities:
(a) To issue and sell the Preferred Securities and the Common Securities in
accordance with this Declaration; 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, there shall be no interests in the
Trust other than the Securities and the issuance of Securities shall be limited
to a one-time, simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date;
-12-
15
(b) In connection with the issue and sale of the Preferred Securities, at
the direction of the Sponsor, to:
(i) execute and file with the Securities and Exchange Commission (the
"Commission") the registration statement on Form S-3 prepared by the Sponsor in
relation to the Preferred Securities, including any amendments thereto prepared
by the Sponsor;
(ii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor as necessary in order to qualify or
register all or part of the Preferred Securities in any State in which the
Sponsor has determined to qualify or register such Preferred Securities for
sale;
(iii) execute and file an application prepared by the Sponsor to the
New York Stock Exchange or any other national stock exchange or the NASDAQ
National Market for listing upon notice of issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration statement on
Form 8-A prepared by the Sponsor relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act, including any amendments
thereto prepared by the Sponsor; and
(v) execute and enter into the Underwriting Agreement and Pricing
Agreement providing for the sale of the Preferred Securities;
(c) To acquire the Subordinated Notes with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Subordinated Notes to be held of
record in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Common Securities;
(d) To give the Subordinated Note Issuer, the Sponsor and the Property
Trustee prompt written notice of the occurrence of a Special Event provided,
that the Regular Trustees shall consult with the Subordinated Note Issuer, the
Sponsor and the Property Trustee before taking or refraining from taking any
Ministerial Action in relation to a Special Event;
(e) To establish a record date with respect to all actions to be taken
hereunder that require a record date be established, Section including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Common Securities as to such
actions and applicable record dates;
(f) To take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Securities;
(g) To bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) To employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) To cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
-13-
16
(j) To give the certificate to the Property Trustee required by Section
314(a)(4) of the Trust Indenture Act which certificate may be executed by any
Regular Trustee;
(k) To incur expenses which are necessary or incidental to carry out any of
the purposes of the Trust;
(l) To act as, or appoint another Person to act as, registrar and transfer
agent for the Securities;
(m) To give prompt written notice to the Holders of the Securities of any
notice received from the Subordinated Note Issuer of its election (i) to defer
payments of interest on the Subordinated Notes by extending the interest payment
period under the Indenture or, (ii) to extend the scheduled maturity date on the
Subordinated Notes;
(n) To execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing;
(o) To take all action which may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which the Trust was created;
(p) To take any action, not inconsistent with this Declaration or with
applicable law, which the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6 including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust not to be characterized for United States
federal income tax purposes as an association taxable as a corporation or a
partnership but for each Holder of Securities to be treated as owning an
undivided beneficial interest in the Subordinated Notes; and
(iii) cooperating with the Subordinated Note Issuer to ensure that the
Subordinated Notes will be treated as indebtedness of the Subordinated Note
Issuer for United States federal income tax purposes, provided that such action
does not adversely affect the interests of Holders; and
(q) To take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to the Trust
to be duly prepared and filed by the Regular Trustees, on behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this Section 3.6
in a manner which is consistent with the purposes and functions of the Trust set
out in Section 3.3 and the Regular Trustees shall not take any action which is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
3.7 PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.
-14-
17
The Trust shall not, and the Trustees (including the Property Trustee)
shall cause the Trust not to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:
(a) Invest any proceeds received by the Trust from holding the
Subordinated Notes, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) Acquire any assets other than as expressly provided herein;
(c) Possess Trust property for other than a Trust purpose;
(d) Make any loans or incur any indebtedness other than loans
represented by the Subordinated Notes;
(e) Possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(f) Issue any securities or other evidences of beneficial ownership of,
or beneficial interest in, the Trust other than the Securities; or
(g) direct the time, method and place of exercising any trust or power
conferred upon the Subordinated Note Trustee with respect to the Subordinated
Notes, (B) waive any past default that is waivable under Section 6.06 of the
Indenture, (C) exercise any right to rescind or annul any declaration that the
principal of all the Subordinated Notes shall be due and payable or (D) consent
to any amendment, modification or termination of the Indenture or the
Subordinated Notes, where such consent shall be required, unless the Trust shall
have received an opinion of counsel to the effect that such modification will
not cause more than an insubstantial risk that for United States federal income
tax purposes the Trust will be characterized as an association taxable as a
corporation or a partnership and that each Holder of Securities will not be
treated as owning an undivided beneficial interest in the Subordinated Notes.
3.8 POWERS AND DUTIES OF THE PROPERTY TRUSTEE.
(a) The legal title to the Subordinated Notes shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Subordinated Notes shall vest automatically in each Person who may
hereafter be appointed as Property Trustee as set forth in Section 5.6. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered;
(b) The Property Trustee shall not transfer its right, title and interest
in the Subordinated Notes to the Regular Trustees or to the Delaware Trustee (if
the Property Trustee does not also act as Delaware Trustee);
(c) The Property Trustee shall:
(i) establish and maintain a segregated bank account (the "Property
Trustee Account") in the name of and under the exclusive control of the Property
Trustee on behalf of the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Subordinated Notes held by the Property
Trustee, deposit such funds into the Property Trustee Account and make payments
to the Holders of the Preferred Securities and the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the Property
Trustee Account shall be held uninvested until disbursed in accordance
-15-
18
with this Declaration. If the Preferred Securities are not represented by a
Global Preferred Security, the Property Trustee shall hold such funds in an
interest-bearing bank account, and any interest earned on such funds shall be
paid by the Property Trustee to the Sponsor. The Property Trustee Account shall
be an account which is maintained with a banking institution either (a) the
rating on whose long term unsecured indebtedness is rated "A" or above by a
"nationally recognized statistical rating organization," as that term is defined
for purposes of Rule 436(g)(2) under the Securities Act, or (b) which has
capital and surplus of at least $100,000,000;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and the Common
Securities to the extent the Subordinated Notes are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the Common Securities,
engage in such ministerial activities as shall be necessary or appropriate to
effect the distribution of the Subordinated Notes to Holders of Securities upon
the occurrence of certain special events (as may be defined in the terms of the
Securities) arising from a change in law or a change in legal interpretation or
other specified circumstances pursuant to the terms of the Securities;
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the terms of
the Securities;
(e) The Property Trustee shall take any Legal Action which arises out of or
in connection with an Event of Default or the Property Trustee's duties and
obligations under this Declaration or the Trust Indenture Act;
(f) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms of
the Securities; or
(ii) a Successor Property Trustee has been appointed and accepted that
appointment in accordance with Section 5.6;
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Subordinated Notes under the
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Subordinated Note, subject to the rights of the Holders
pursuant to the terms of such Securities;
(h) The Property Trustee may authorize one or more Persons (each, a "Paying
Agent") to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to the Preferred Securities and any such Paying
Agent shall comply with Section 317(b) of the Trust Indenture Act. Any Paying
Agent may be removed by the Property Trustee at any time and a successor Paying
Agent or additional Paying Agents may be appointed at any time by the Property
Trustee; and
(i) Subject to this Section 3.8, the Property Trustee shall have none of the
powers or the authority of the Regular Trustees set forth in Section 3.6;
The Property Trustee must exercise the powers set forth in this Section 3.8 in a
manner which is consistent with the purposes and functions of the Trust set
forth in Section 3.3 and the Property Trustee shall not take any action which is
inconsistent with the purposes and functions of the Trust set out in Section
3.3.
-16-
19
3.9 CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE
(a) The Property Trustee, before the occurrence of any Event of Default and
after the curing or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration in Sections 2.2, 2.3, 2.7, 3.8, 3.9, 3.10 and 6.1 and in the
terms of the Securities, and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration, and use the same degree of care and skill in its exercise, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs;
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and after the curing
or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration in Sections 2.2,
2.3, 2.7, 3.8, 3.9, 3.10 and 6.1 and in the terms of the Securities, and the
Property Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this Declaration against the
Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this
Declaration;
(ii) The Property Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Property Trustee, unless it
shall be proved that the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) The Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in Liquidation Amount of
the Securities at the time outstanding 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) No provision of this Declaration shall require the Property Trustee
to expend or risk its own funds or otherwise incur personal financial liability
in the performance of any of its duties or in the exercise of any of its rights
or powers, if it shall have reasonable ground for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of
this Declaration or adequate indemnity against such risk or liability is not
reasonably assured to it.
3.10 CERTAIN RIGHTS OF PROPERTY TRUSTEE.
Subject to the provisions of Section 3.9:
-17-
20
(a) The Property Trustee may rely and shall be fully protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties;
(b) Any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by a Direction
or an Officer's Certificate;
(c) Whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Property Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part and, if the Trust is excluded from the definition of an
Investment Company solely by means of Rule 3a-7, subject to the requirements of
Rule 3a-7, request and rely upon an Officer's Certificate which, upon receipt of
such request, shall be promptly delivered by the Sponsor or the Regular
Trustees;
(d) The Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (or any rerecording, refiling or
registration thereof);
(e) The Property Trustee may consult with counsel and the written advice
or opinion of such counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such advice or
opinion. Such counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees. The Property Trustee shall have the right
at any time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(f) The Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Declaration at the request or
direction of any Holder, unless such Holder shall have provided to the Property
Trustee adequate security and indemnity which would satisfy a reasonable person
in the position of the Property Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable advances as
may be requested by the Property Trustee provided that, nothing contained in
this Section 3.10(f) shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Declaration;
(g) The Property Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Property Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(h) The Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(i) Any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders of the Securities and the signature of the
Property Trustee or its agents alone shall be sufficient and effective to
perform any such action; and no third party shall be required to inquire as to
the authority of the
-18-
21
Property Trustee to so act, or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such action;
(j) Whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Securities which
instructions may only be given by the Holders of the same portion 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 acting in
accordance with such instructions; and
(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.
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.
3.11 DELAWARE TRUSTEE
Notwithstanding any other provision of this Declaration other than Section
5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees and the Property Trustee described in this Declaration. Except
as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
purposes of the Trust Indenture Act. Any Paying the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust Act.
3.12 EXECUTION OF DOCUMENTS
Unless otherwise determined by the Regular Trustees and except as otherwise
required by the Business Trust Act, a majority of, or if there are only two,
both of the Regular Trustees are authorized to execute on behalf of the Trust
any documents which the Regular Trustees have the power and authority to execute
pursuant to Section 3.6, provided that any listing application prepared by the
Sponsor referred to in Section 3.6(b)(iii) may be executed by any Regular
Trustee.
3.13 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained in this Declaration and the Securities shall be taken
as the statements of the Sponsor and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
3.14 DURATION OF TRUST.
The Trust, unless terminated pursuant to the provisions of Article VIII
hereof, shall have existence for 55 years from the Closing Date.
3.15 MERGERS
-19-
22
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c);
(b) The Trust may, with the consent of a majority of the Regular Trustees
or, if there are only two Regular Trustees, with the consent of both Regular
Trustees, and without the consent of the Holders of the Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or
be replaced by a trust organized as such under the laws of any State; provided,
that:
(i) Such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Securities; or
(B) substitutes for the 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 with respect to Distributions and payments upon liquidation,
redemption and maturity;
(ii)The Subordinated Note Issuer expressly acknowledges a trustee of the
Successor Entity which possesses the same powers and duties as the Property
Trustee as the Holder of the Subordinated Note;
(iii) The Preferred Securities or any 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;
(iv) Such merger, consolidation, amalgamation or replacement 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 or replacement does not
adversely affect the rights, preferences and privileges of the Holders of the
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 or replacement,
the Sponsor has received an opinion of a nationally recognized independent
counsel to the Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement 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 or
replacement, neither the Trust nor the Successor Entity will be required to
register as an Investment Company; and
(viii) The Sponsor guarantees the obligations of such Successor Entity
under the Successor Securities at least to the extent provided by the Preferred
Securities Guarantee; and
-20-
23
(c) Notwithstanding Section 3.15(b), the Trust shall not consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the Trust or
Successor Entity for United States federal income tax purposes to be classified
as an association taxable as a corporation or a partnership and each Holder of
the Securities not to be treated as owning an undivided beneficial interest in
the Subordinated Notes, except with the consent of Holders of 100% in
Liquidation Amount of the Securities.
ARTICLE IV
SPONSOR
4.1 SPONSOR'S PURCHASE OF COMMON SECURITIES.
On the Closing Date the Sponsor will purchase all the Common Securities
issued by the Trust, at the same time as the Preferred Securities are sold, in
an amount equal to 3% of the capital of the Trust.
4.2 RESPONSIBILITIES OF THE SPONSOR.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) To prepare for filing by the Trust with the Commission a registration
statement on Form S-3 in relation to the Preferred Securities, including any
amendments thereto;
(b) To determine the States in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to take any and
all such acts, other than actions which must be taken by the Trust, and advise
the Trust of actions it must take, and prepare for execution and filing any
documents to be executed and filed by the Trust, as the Sponsor deems necessary
or advisable in order to comply with the applicable laws of any such States;
(c) To prepare for filing by the Trust an application to the New York Stock
Exchange or any other national stock exchange or the NASDAQ National Market for
listing upon notice of issuance of any Preferred Securities;
(d) To prepare for filing by the Trust with the Commission a registration
statement on Form 8-A relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act, including any amendments thereto; and
(e) To negotiate the terms of the Underwriting Agreement and Pricing
Agreement providing for the sale of the Preferred Securities.
4.3 EXPENSES.
(a) The Sponsor shall be responsible for and shall pay for all debts and
obligations (other than with respect to the Securities) and all costs and
expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the issuance and sale of the
Preferred Securities, the fees and expenses (including reasonable counsel fees
and expenses) of the Trustees, the costs and expenses relating to the operation
of the Trust, including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing and
engraving and
-21-
24
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplication, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the disposition of
Trust assets).
(b) The Sponsor will pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.3 shall be for the benefit
of, and shall be enforceable by, any Person to whom any such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the sponsor's
obligations under this Section 4.3 directly against the Sponsor and the Sponsor
irrevocably waives any right or remedy to require that any such Creditor take
any action against the Trust or any other Person before proceeding against the
Sponsor. The Sponsor agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the provisions of this
Section 4.3.
ARTICLE V
TRUSTEES
5.1 NUMBER OF TRUSTEES.
The number of Trustees shall initially be five (5), and:
(a) At any time before the issuance of any Securities, the Sponsor may, by
written instrument, increase or decrease the number of Trustees; and
(b) After the issuance of any Securities,
the number of Trustees may be increased or decreased by vote of the Holders of a
Majority in Liquidation Amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities, provided that in any case, the
number of Trustees shall be at least five (5) unless the Trustee that acts as
the Property Trustee also acts as the Delaware Trustee pursuant to Section 5.2
in which case the number of Trustees shall be at least three(3).
5.2 DELAWARE TRUSTEE.
If required by the Business Trust Act, one Trustee (the "Delaware Trustee")
shall be:
(a) A natural person who is a resident of the State of Delaware; or
(b) If not a natural person, an entity which has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, provided that if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the requirements of
applicable law, then the Property Trustee shall also be the Delaware Trustee and
Section 3.11 shall have no application.
5.3 PROPERTY TRUSTEE; ELIGIBILITY.
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(i) Not be an Affiliate of the Sponsor;
-22-
25
(ii) Be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $100,000,000, and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then for the
purposes of this Section 5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published; and
(b) If the Trust is excluded from the definition of an Investment Company
solely by means of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee
having certain qualifications to hold title to the "eligible assets" of the
Trust, the Property Trustee shall possess those qualifications; and
(c) If at any time the Property Trustee shall cease to be eligible to so act
under Section 5.3(a), the Property Trustee shall immediately resign in the
manner and with the effect set forth in Section 5.6(c);
(d) If the Property Trustee has or shall acquire any conflicting
interest within the meaning of Section 310(b) of the Trust Indenture Act,
the Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act; and
(e) The Preferred Securities Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
5.4 QUALIFICATIONS OF REGULAR TRUSTEES AND DELAWARE TRUSTEE GENERALLY.
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person who is at least
21 years of age or a legal entity which shall act through one or more Authorized
Officers.
5.5 INITIAL TRUSTEES
The initial Regular Trustees shall be:
Sam L. Ginn
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Margaret G. Gill
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Mohan Gyani
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
-23-
26
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware
The initial Property Trustee shall be:
5.6 APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed without
cause at any time:
(i) until the issuance of any Securities, by written instrument executed
by the Sponsor; and
(ii) after the issuance of any Securities,
by vote of the Holders of a Majority in Liquidation Amount of the Common
Securities voting as a class at a meeting of the Holders of the Common
Securities.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 5.6(a) until a Successor Property Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Property Trustee and delivered to the Regular Trustees and the
Sponsor.
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with this Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his or her
successor shall have been appointed or until his or her death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon
such delivery or upon such later date as is specified therein; PROVIDED,
HOWEVER, that:
(i) no such resignation of the Trustee that acts as the Property Trustee
shall be effective until:
(A) 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
-24-
27
(B) if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7, until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to the holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor and the resigning
Delaware Trustee.
(e) the Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of registration in accordance with this Section 5.6
(f) if no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this Section 5.6
within 60 days after delivery to the Sponsor and the Trust of an instrument of
resignation, the resigning Property Trustee or Delaware Trustee may petition any
court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon after 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.
5.7 VACANCIES AMONG TRUSTEES.
If a Trustee ceases to hold office for any reason and the number of Trustees
is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 5.6.
5.8 EFFECT OF VACANCIES.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee, or
any one of them, shall not operate to annul the Trust. Whenever a vacancy in the
number of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.6, the Regular
Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
5.9 MEETINGS.
Meetings of the Regular Trustees shall be held from time to time upon the
call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this
-25-
28
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees.
5.10 DELEGATION OF POWER.
(a) Any Regular 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 3.6 including
any registration statement or amendment thereto filed with the Commission or
making any other governmental filing; and
(b) The Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular 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 VI
DISTRIBUTIONS
6.1 DISTRIBUTIONS.
If and to the extent that the Subordinated Note Issuer makes a payment of
interest (including any interest payments on interest deferred in accordance
with the terms of the Indenture) and/or principal on the Subordinated Notes held
by the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders in accordance with the applicable terms of the
Securities. Distributions shall be made on the Preferred Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms.
ARTICLE VII
ISSUANCE OF SECURITIES
7.1 GENERAL PROVISIONS REGARDING SECURITIES.
(a) The Regular Trustees shall issue on behalf of the Trust securities in
fully registered form representing undivided beneficial interests in the assets
of the Trust in accordance with this Section 7.1(a) and for the consideration
specified in the Pricing Agreement. The Regular Trustees shall, on behalf of the
Trust, issue one class of preferred securities representing undivided beneficial
interests in the assets of the Trust (the "Preferred Securities") having such
terms as are set forth in Exhibit A, as such Exhibit A may be amended from time
to time in accordance with this Declaration and incorporated herein by
reference, and one class of common securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in
Exhibit A, as such Exhibit A may be amended from time to time in accordance with
this Declaration, and incorporated herein by reference. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities;
(b) The Securities shall be signed on behalf of the Trust by the Regular
Trustees (or if there are more than two Regular Trustees by any two of the
Regular Trustees). Such signatures may be the manual or facsimile signatures of
the present or any future Regular Trustee. Typographical and other minor errors
or
-26-
29
defects in any such reproduction of any such signature shall not affect the
validity of any Security. In case any Regular Trustee of the Trust who shall
have signed any of the Securities shall cease to be such Regular Trustee before
the Securities so signed shall be delivered by the Trust, such Security
nevertheless may be delivered as though the person who signed such Security had
not ceased to be such Regular Trustee; and any Certificate may be signed on
behalf of the Trust by such persons who shall, at the actual date of the
execution of such Security, be the Regular Trustees of the Trust, although at
the date of the execution and delivery of the Declaration any such person was
not such a Regular Trustee; Securities shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation of any stock
exchange on which Securities may be listed, or to conform to usage;
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust;
(d) Upon issuance of the Securities as provided in this Declaration, the
Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable; and
(e) Every Person, by virtue of having become a Holder in accordance with the
terms of this Declaration, shall be deemed to have expressly assented and agreed
to the terms of, and shall be bound by this Declaration.
ARTICLE VIII
TERMINATION OF TRUST
8.1 TERMINATION OF TRUST.
This Declaration and the Trust shall terminate and be of no further force or
effect when:
(a) All of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders of
Securities in accordance with the terms hereof and of the Securities; or
(b) All of the Subordinated Notes shall have been distributed to the Holders of
Securities in exchange for all of the Securities in accordance with the terms
hereof and of the Securities; or
(c) Upon the expiration of the term of the Trust as set forth in Section 3.14
hereof; or
(d) Before the issuance of any Securities, with the consent of all of the
Regular Trustees and the Sponsor,
and a certificate of cancellation is filed by the Trustees with the Secretary of
State of the State of Delaware. The Trustees shall so file such a certificate as
soon as practicable after the occurrence of an event referred to in this Section
8.1
The provisions of Sections 3.10, Section 4.2 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS; FORMS OF SECURITIES
-27-
30
9.1 TRANSFER OF SECURITIES.
(a) Securities may only be transferred, in whole or in part, in accordance
with the terms and conditions set forth in this Declaration and in the terms of
the Securities. Any transfer or purported transfer of any Security not made in
accordance with this Declaration shall be null and void;
(b) Subject to this Article IX, the Preferred Securities shall be freely
transferable, provided, however, that the Global Preferred Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any nominee to a successor Depositary or a
nominee of any successor Depositary; and
(c) Subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor,
PROVIDED THAT, any such transfer is subject to the condition precedent that the
transferor obtain the written opinion of nationally recognized independent
counsel experienced in such matters that such transfer would not cause more than
an insubstantial risk that:
(i) The Trust would be classified for United States federal income tax
purposes as an association taxable as a corporation or a partnership and each
Holder of Securities would not be treated as owning an undivided beneficial
interest in the Subordinated Notes; and
(ii) The Trust or the transferee would be an Investment Company.
9.2 REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES
Except as specifically otherwise provided herein with respect to Global
Preferred Securities, Securities may be exchanged for Securities representing a
like aggregate liquidation amount. Securities to be exchanged shall be
surrendered at the offices or agencies of the Property Trustee and the Regular
Trustees shall execute the Securities, and the Property Trustee shall
authenticate and deliver in exchange therefor the Securities or Securities which
the Holder making the exchange shall be entitled to receive.
The Property Trustee shall keep or cause to be kept, at its principal
corporate trust office, the Register in which, subject to such reasonable
regulations as it may prescribe, the Property Trustee shall provided for the
registration of the Securities and the transfer of Securities as in this Article
provided. The Register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. At all reasonable
times the Register shall be open for inspection by the Regular Trustees and the
Sponsor. Upon due presentment for transfer of any Security at the principal
corporate trust office of the Property Trustee, the Regular Trustees shall
execute a new Security and the Property Trustee shall authenticate and deliver
in the name of the transferee or transferees a new Security for a like aggregate
liquidation amount.
Notwithstanding any other provisions of this Section 9.2, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Preferred Security representing all or a portion of the Securities may
not be transferred except as a whole by the Depository to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
All Securities presented or surrendered for exchange, transfer,
redemption, conversion or payment shall, if so required by the Property Trustee,
be accompanied by a written instrument or instruments of
-28-
31
transfer, in form satisfactory to the Regular Trustees and the Property Trustee,
duly executed by the registered Holder or by such Person's attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Property Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Property Trustee shall not be required to exchange or transfer (a)
any Securities during a period beginning at the opening of business 15 days
before the day of the first publication or the mailing (if there is no
publication) of a notice of redemption of Securities and ending at the close of
business on the day of such publication or mailing or (b) any Securities called
or selected for redemption in whole or in part, except, in the case of
Securities called for redemption in part, the portion thereof not so called for
redemption in whole or in part or during a period beginning at the opening of
business on any record date and ending at the close of business on the relevant
Distribution payment date therefor.
9.3 DEEMED SECURITY HOLDERS
The Trustees may treat the Person in whose name any Security shall be
registered on the books and records of the Trust as the sole holder of such
Security for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Securities on the part of any Person, whether
or not the Trustees shall have actual or other notice thereof.
9.4 GLOBAL SECURITIES
(a) Unless otherwise specified in the terms of the Preferred Securities,
on original issuance, will be issued in the form of one or more fully registered
Global Preferred Securities, to be delivered to the Depositary, by, or on behalf
of, the Trust. Each Global Preferred Security shall: (i) represent the aggregate
liquidation amount of Preferred Securities issued hereunder, (ii) be registered
in the name of either the Depositary for such Global Preferred Security or the
nominee of such Depositary, (iii) be delivered by the Trustee to such Depositary
or pursuant to such Depositary's written instruction and (iv) bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Preferred Securities in definitive form, this Global
Preferred Security may not be transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any nominee to a
successor Depositary or a nominee of any successor Depositary." The notation of
the record owner's interest in such Global Preferred Security upon the original
issuance thereof shall be deemed to be delivery in connection with the original
issuance of each beneficial owner's interest in such Global Preferred Security.
Without limiting the foregoing, the Regular Trustees, the Property Trustee, the
Sponsor and the Issuer of the Subordinated Notes shall have no responsibility,
obligation or liability with respect to: (x) the maintenance, review or accuracy
of the records of the Depositary or of any of its participating organizations
with respect to any ownership interest in or payments with respect to such
Global Preferred Security, (y) any communication with or delivery of any notice
(including notices of redemption) with respect to the Preferred Securities
represented by the Global Preferred Security to any Person having any ownership
interest in such Global Preferred Security or to any of the Depositary's
participating organizations or (z) any payment made on account of any beneficial
ownership interest in such Global Preferred Security.
(b) If Preferred Securities are issued in the form of a Global Preferred
Security or Securities, each such Global Preferred Security may provide that it
shall represent the aggregate amount of outstanding Preferred Securities from
time to time endorsed thereon and may also provide that the aggregate amount of
-29-
32
outstanding Preferred Securities represented thereby may from time to time be
reduced to reflect exchanges. Any endorsement of a Global Preferred Security to
reflect the amount of outstanding Preferred Securities represented thereby shall
be made by the Trustee and in such manner as shall be specified on such Global
Preferred Security. Any instructions by the Regular Trustees with respect to a
Global Preferred Security, after its initial issuance, shall be in writing.
(c) The Depositary hereunder shall be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, and any other applicable
statute or regulation If at any time the Depositary for the Preferred Securities
notifies the Regular Trustees that it is unwilling or unable to continue as
Depositary or if at any time the Depositary shall no longer be eligible to serve
as Depositary, the Regular Trustees shall appoint a successor Depositary. If a
successor Depositary is not appointed by the Regular Trustees within 90 days
after they receive such notice or learn of such ineligibility, the Regular
Trustees shall execute and deliver definitive Preferred Securities in authorized
liquidation amounts in exchange for the Global Preferred Security or Securities
(the "Definitive Preferred Security Certificates") in the same aggregate
liquidation amount as the Global Preferred Security or Securities representing
the Preferred Securities in exchange for such Global Preferred Security or
Securities, in accordance with the provisions of subsection (e) of this Section
9.4, without any further corporate action by the Trustees.
(d) The Regular Trustees may at any time after consultation with the
Sponsor, determine that the Preferred Securities issued in the form of one or
more Global Preferred Securities shall no longer be represented by such Global
Preferred Security or Securities. In such event, the Regular Trustees will
execute and deliver Preferred Securities in definitive form and in authorized
denominations in an aggregate principal amount equal to the principal amount of
the Global Preferred Security or Securities representing the Preferred
Securities in exchange for such Global Preferred Security or Securities, in
accordance with the provisions of subsection (e) of this Section 9.4 without any
further corporate action by the Regular Trustees.
(e) Upon any exchange hereunder of the Global Preferred Security or
Securities for Preferred Securities in definitive form, such Global Preferred
Security or Securities shall be canceled by the Trust. Preferred Securities
issued hereunder in exchange for the Global Preferred Security or Securities
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Preferred Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Regular
Trustees. The Regular Trustees shall deliver such Definitive Preferred
Securities in definitive certificated form in exchange for the Global Preferred
Security or Securities to the persons in whose name such definitive Preferred
Securities have been registered in accordance with the directions of the
Depositary.
(f) Unless otherwise specified in the terms of the Common securities, on
original issuance, the Common Securities will be issued in the form of a single
fully registered Common Security Certificate which shall (a) represent the
aggregate liquidation amount of common Securities issued hereunder and (b) be
registered in the name of the Sponsor and delivered by the Trust to the Sponsor.
9.5 NOTICES TO DEPOSITARY
Whenever a notice or other communication to the Preferred Security Holders
is required under this Declaration, unless and until Definitive Preferred
Security Certificates shall have been issued pursuant to Section 9.4, the
Regular Trustees shall give all such notices and communications, specified
herein to be given to the Preferred Security Holders, to the Depositary, and
shall have no other notice obligations.
9.6 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If:
-30-
33
(a) Any mutilated Securities should be surrendered to the Regular Trustees,
or if the Regular Trustees shall receive evidence to their satisfaction of the
destruction, loss or theft of any Securities; and
(b) There shall be delivered to the Regular Trustees, the Sponsor and the
Property Trustee such security or indemnity as may be required by them to keep
each of them harmless, then in the absence of notice that such Security shall
have been acquired by a bona fide purchaser, the Regular Trustees on behalf of
the Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security in the same
aggregate Liquidation Amount as the mutilated, destroyed, lost or stolen
Security. In connection with the issuance of any new Certificate under this
Section 9.6, the Regular Trustees may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Every new Security issued pursuant to this Section 9.6 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Trust, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the security and benefits of this Declaration equally and
ratably with all other Outstanding Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
10.1 LIABILITY
(a) Except as expressly set forth in this Declaration, the Securities
Guarantees and the terms of the Securities the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities which
shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of Securities any
deficit upon dissolution of the Trust or otherwise; and
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Securities shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations.
10.2 EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence (or, in the
case of the Property Trustee except as otherwise set forth in Section 3.9) or
willful misconduct with respect to such acts or omissions; and
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including
-31-
34
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders of Securities
might properly be paid.
10.3 FIDUCIARY DUTY
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration, subject to any duties or obligations imposed on the Property
Trustee under Rule 3a-7, shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity (other than duties imposed on the Property Trustee under the
Trust Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) Whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Persons; or
(ii) Whenever this Declaration or any other agreement contemplated
herein or therein provide that an Indemnified Person shall act in a manner that
is, or provides terms that are, fair and reasonable to the Trust or any Holder
of Securities,
(c) The Indemnified Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise; and
whenever in this Declaration an Indemnified Person is permitted or required to
make a decision
(i) In its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests and factors as
it desires, including its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting the Trust or any
other Person; or
(ii) In its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
10.4 INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of 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 incurred by such Indemnified
Person
-32-
35
by reason of gross negligence (or, in the case of the Property Trustee, except
as otherwise set forth in Section 3.9) or willful misconduct with respect to
such acts or omissions; and
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor 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 Section 10.4(a).
10.5 OUTSIDE BUSINESSES.
Any Covered Person, the Sponsor, the Subordinated Note Issuer, the Delaware
Trustee and the Property Trustee may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the
Holders of Securities shall have no rights by virtue of this Declaration in and
to such independent ventures or the income or profits derived therefrom and the
pursuit of any such venture, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the
Subordinated Note Issuer, the Delaware Trustee, or the Property Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the
Subordinated Note Issuer, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as Depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
11.1 FISCAL YEAR
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
11.2 CERTAIN ACCOUNTING MATTERS.
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon, as of the end of each
Fiscal Year, by a firm of independent certified public accountants selected by
the Regular Trustees
(b) The Regular Trustees shall cause to be prepared and delivered to each of
the Holders of Securities, within 90 days after the end of each Fiscal Year of
the Trust, annual financial statements of the Trust, including a balance sheet
of the Trust as of the end of such Fiscal Year, and the related statements of
income or loss;
-33-
36
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Securities, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the
Trust; and
(d) The Regular Trustees shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing authority.
11.3 BANKING.
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; PROVIDED, HOWEVER, that all payments of funds in
respect of the Subordinated Notes held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; PROVIDED, HOWEVER, that
the Property Trustee shall designate the sole signatories for the Property
Trustee Account.
11.4 WITHHOLDING
The Trust and the Trustees shall comply with all withholding requirements
under United States federal, state and local law. The Trust shall request, and
the Holders shall provide to the Trust, such forms or certificates as are
necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
12.1 AMENDMENTS.
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Securities, this Declaration may be amended by, and only by, a
written instrument approved and executed by the Regular Trustees (or, if there
are more than two Regular Trustees a majority of the Regular Trustees);
PROVIDED, HOWEVER, that:
(i) No amendment shall be made, and any such purported amendment shall
be void and ineffective, to the extent the result thereof would be to:
-34-
37
(A) cause the Trust to be characterized for purposes of United
States federal income taxation as an association taxable as a corporation or a
partnership and each Holder of Securities not to be treated as owning an
undivided beneficial interest in the Subordinated Notes;
(B) reduce or otherwise adversely affect the powers of the Property
Trustee; or
(C) cause the Trust to be deemed to be an Investment Company which
is required to be registered under the Investment Company Act;
(ii) At such time after the Trust has issued any Securities which remain
outstanding, any amendment which would adversely affect the rights, privileges
or preferences of any Holder of Securities may be effected only with such
additional requirements as may be set forth in the terms of such Securities;
(iii) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities;
(iv) Article IV shall not be amended without the consent of the Holders
of a Majority in Liquidation Amount of the Common Securities; and
(v) the rights of the holders of the Common Securities under Article V
to increase or decrease the number of, and appoint and remove Trustees shall not
be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities (except to the extent that such amendment
relates to the Special Regular Trustee, in which case such amendment may only be
made in accordance with the terms of the Preferred Securities).
(b) Notwithstanding Section 12.1(a)(ii), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration that may be
defective or inconsistent with any other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations of the Sponsor;
and
(iv) to add or change any of the provisions of this Declaration to such
extent as shall be necessary to facilitate the issuance of Securities in
definitive certificated form;
(v) conform to any change in Rule 3a-7 or written change in
interpretation or application of Rule 3a-7 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the Holders.
(c) Prior to the issuance of the Securities, any terms of the Securities may
be amended by a written instrument approved and executed by the Regular Trustees
(or, if there are more than two Regular Trustees a majority of the Regular
Trustees) and the Sponsor.
12.2 MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT
-35-
38
(a) Meetings of the Holders of any class of Securities may be called at any
time by the Regular Trustees (or as provided in the terms of the Securities) to
consider and act on any matter on which Holders of such class of Securities are
entitled to act under the terms of this Declaration, the terms of the Securities
or the rules of any stock exchange on which the Preferred Securities are listed
or admitted for trading. The Regular Trustees shall call a meeting of such class
of Holders, if directed to do so by the Holders of at least 10% in Liquidation
Amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more calls in a writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Security Certificates
held by the Holders of Securities exercising the right to call a meeting and
only those specified shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met; and
(b) Except to the extent otherwise provided in the terms of the Securities,
the following provisions shall apply to meetings:
(i) Notice of any such meeting shall be given to all the Holders of
Securities having a right to vote thereat at least 7 days and not more than 60
days before the date of such meeting. Whenever a vote, consent or approval of
the Holders of Securities is permitted or required under this Declaration or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading, such vote, consent or approval may be given at a meeting
of the Holders of Securities. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of Securities owning
not less than the minimum amount of Securities in Liquidation Amount that would
be necessary to authorize or take such action at a meeting at which all Holders
of Securities having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given to the Holders
of Securities entitled to vote who have not consented in writing. The Regular
Trustees may specify that any written ballot submitted to the Security Holder
for the purpose of taking any action without a meeting shall be returned to the
Trust within the time specified by the Regular Trustees;
(ii) Each Holder of a Security may authorize any Person to act for it by
proxy on all matters in which a Holder of Securities is entitled to participate,
including waiving notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) Each meeting of the Holders of the Securities shall be conducted
by the Regular Trustees or by such other Person that the Regular Trustees may
designate; and
(iv) Unless the Business Trust Act, this Declaration, the terms of the
Securities or the listing rules of any stock exchange on which the Preferred
Securities are then listed or trading, otherwise provides, the Regular Trustees,
in their sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of any such right to
vote.
-36-
39
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND THE
DELAWARE TRUSTEE
13.1 REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.
The Trustee which acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a banking association with trust powers, duly
organized, validly existing and in good standing under the laws of the [United
States][States of ________], with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration.
(b) The execution, delivery and performance by the Property Trustee of the
Declaration has been duly authorized by all necessary corporate action on the
part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee, and it constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the Articles
of Organization or By-laws of the Property Trustee.
(d) No consent, approval or authorization of, or registration with or notice
to, any State or Federal banking authority is required for the execution,
delivery or performance by the Property Trustee, of the Declaration.
(e) to add or change any of the provisions of this Declaration to such
extent as shall be necessary to facilitate the issuance of Securities in
definitive certificated form;
[(f) Pursuant to a Co-Trustee Agreement between the Property Trustee and the
Delaware Trustee dated as of _________, the Delaware Trustee has been authorized
to perform its obligations under the Certificate of Trust and the Declaration.]
13.2 REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE
The Trustee which acts as initial Delaware Trustee represents and warrants to
the Trust and the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee, that (a) it satisfies the qualifications set forth in Section
5.1(a)(3) and (b) the Declaration has been duly executed and delivered by the
Delaware Trustee, and it constitutes a legal, valid and binding obligation of
the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law).
-37-
40
ARTICLE XIV
MISCELLANEOUS
14.1 NOTICES.
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be electronically communicated
or hand delivered or sent by overnight courier, addressed to the relevant Person
as provided in this Section 14.1:
If given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust may give
notice of to the Holders of the Securities):
AIRTOUCH FINANCING ( )
One California Street
San Francisco, California 94111
Attention: ( )
If given to the Property Trustee, at the mailing address set forth below (or
such other address as the Property Trustee may give notice of to the Holders of
the Securities):
Attention: ( )
If given to the Holder of the Common Securities, at the mailing address of
the Sponsor set forth below (or such other address as the Holder of the Common
Securities may give notice to the Trust):
AirTouch Communications, Inc.
One California Street
San Francisco, California 94111
Attention: ( )
If given to any other Holder, at the address set forth on the books and
records of the Trust.
For all purposes of this Declaration, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day
it is delivered unless (i) that day is not a Business Day in the city
specified (a "Local Business Day") in the address for notice provided by
the recipient or (ii) if delivered after the close of business on a
Local Business Day, then on the next succeeding Local Business Day or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by the
sender unless the date of transmission and confirmation is not a Local
Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, request, demand, consent or waiver by the
Sponsor, or any Holder of Securities to or upon the Property Trustee shall be
deemed to have been sufficiently given, made or filed, for all purposes, if
given, made or filed in writing at the principal office of the Property Trustee
in accordance with the provisions of this Section 14.1.
-38-
41
Any notice, request, consent or waiver by the Sponsor, the Regular
Trustees or the Property Trustee upon the Depositary shall have been
sufficiently given, made or filed, for all purposes, if give or made in
accordance with the provisions of this Section 14.1 at the address shown for
such Depository in the Register or at such other address as the Depository shall
have provided for purposes of notice.
14.2 GOVERNING LAW
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
14.3 INTENTION OF THE PARTIES.
It is the intention of the parties hereto that the Trust not be
characterized for United States federal income tax purposes as an association
taxable as a corporation or a partnership but rather, the Trust be characterized
as a grantor trust or otherwise in a manner that each Holder of Securities be
treated as owning an undivided beneficial interest in the Subordinated Notes.
The provisions of this Declaration shall be interpreted to further this
intention of the parties.
14.4 HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
14.5 SUCCESSORS AND ASSIGNS
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
14.6 PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
14.7 COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature page
and this Declaration may be executed by the affixing of the signature of each of
the Trustees to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same force
and effect as though all of the signers had signed a single signature page.
14.8 LISTING.
The Regular Trustees shall use their best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange Limited.
-39-
42
-40-
43
IN WITNESS WHEREOF, the undersigned has caused these presents to be executed
as of the day and year first above written.
as Regular Trustee
- -------------------------------------
as Regular Trustee
- -------------------------------------
as Regular Trustee
- -------------------------------------
as Delaware Trustee
By:
Name:
Title:
as Property Trustee
By:
Name:
Title:
AirTouch Communications, Inc.
as Sponsor
By:
Name:
Title:
-41-
44
EXHIBIT A
TERMS OF
_% TRUST ORIGINATED PREFERRED SECURITIES
__% TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 and subject to Section 12.1(c) of the Amended and
Restated Declaration of Trust, dated as of _________, 199( ) (as amended from
time to time in accordance with the provisions thereof, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration):
1. DESIGNATION AND NUMBER.
(a) PREFERRED SECURITIES. Preferred Securities of the Trust with an
aggregate Liquidation Amount with respect to the assets of the Trust of $(_____
million ($_________)) and a Liquidation Amount with respect to the assets of the
Trust of $_____ per Preferred Security, are hereby designated for the purposes
of identification only as "____% Trust Originated Preferred Securities" (the
"Preferred Securities").
(b) COMMON SECURITIES. Common Securities of the Trust with an aggregate
Liquidation Amount with respect to the assets of the Trust of $(_______ million
($______)) and a Liquidation Amount with respect to the assets of the Trust of
$_____ per Common Security, are hereby designated for the purposes of
identification only as "__% Trust Originated Common Securities" (the "Common
Securities").
2. DISTRIBUTIONS.
(a) Periodic Distributions payable on each Security will be at a rate per
annum of [*.*]% (the "Coupon Rate") of the stated Liquidation Amount of $__ per
Security, such rate being the rate of interest payable on the Subordinated Notes
to be held by the Property Trustee. Distributions in arrears for more than one
quarter will bear interest thereon at the Coupon Rate (to the extent permitted
by applicable law). The term Distributions as used in these terms
includes such periodic cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Subordinated Notes held by the Property Trustee. The
amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months.
(b) Distributions on the Securities will be cumulative, will accrue from
_________, 199( ) and will be payable quarterly in arrears, on March 31, June
30, September 30, and December 31 of each year, commencing on __________,
199( ), except as otherwise described below. The Subordinated Note Issuer has
the right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Subordinated Notes for a period
not exceeding [20] consecutive quarters (each, an Extension Period)
and, as a consequence of such extension, Distributions will also be deferred.
Despite such deferral, quarterly Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the Coupon Rate
during any such Extension Period. Prior to the termination of any such Extension
Period, the Subordinated Note Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous and further
extensions thereof may not exceed
A-1
45
[20] consecutive quarters. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on the first record
date after the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Subordinated Note
Issuer may commence a new Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable promptly by the Property
Trustee upon receipt of payment with respect to the Subordinated Notes to the
Holders thereof as they appear on Register on the relevant record dates. While
the Preferred Securities remain in book-entry only form, the relevant record
dates shall correspond with the record dates for the relevant interest payment
dates on the Subordinated Notes. If the Preferred Securities are not in
book-entry form, the relevant record date shall be the date that is [15 Business
Days] prior to the relevant interest payment date on the Subordinated Notes. The
relevant record dates for the Common Securities shall be the same record date as
the Preferred Securities. If the Preferred Securities shall not continue to
remain in book-entry-only form, the relevant record dates for the Preferred
Securities, shall conform to the rules of any securities exchange on which the
securities are listed and, if none, shall be selected by the Regular Trustees,
which dates shall be at least one Business Day but less than 60 Business Days
before the relevant payment dates, which payment dates correspond to the
interest payment dates on the Subordinated Notes. Distributions payable on any
Securities that are not punctually paid on any Distribution payment date, as a
result of the Subordinated Note Issuer or the Sponsor having failed to make a
payment under the Subordinated Notes will cease to be payable to the Person in
whose name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except 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 such date.
(d) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined in Section 8) among the Holders of the
Securities.
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION.
(a) In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the Liquidation Amount of $__ per Security plus accrued and
unpaid Distributions thereon to the date of payment (such amount being the
Liquidation Distribution), unless, in connection with such dissolution,
winding-up or termination, Subordinated Notes in an aggregate principal amount
equal to the aggregate Liquidation Amount of such Securities shall be
distributed on a Pro Rata basis to the Holders of the Securities in exchange for
such Securities.
(b) If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. REDEMPTION AND DISTRIBUTION.
A-2
46
(a) Upon the repayment of the Subordinated Notes in whole or in part,
whether at maturity or upon redemption, the proceeds from such repayment or
payment shall be simultaneously applied to redeem Securities having an aggregate
Liquidation Amount equal to the aggregate principal amount of the Subordinated
Notes so repaid or redeemed, at a redemption price of $__ per Security plus an
amount equal to accrued and unpaid Distributions thereon at the date of the
redemption, payable in cash (the Redemption Price). Holders will be
given not less than 30 nor more than 60 days notice of such redemption.
(b) If fewer than all the outstanding Securities are to be so redeemed, the
Common Securities and the Preferred Securities will be redeemed Pro Rata and the
Preferred Securities to be redeemed will be as described in Paragraph 4(f)(ii)
below.
(c) If, at any time, a Tax Event or an Investment Company Event (each as
defined below, and each a "Special Event") shall occur and be continuing the
Regular Trustees shall dissolve the Trust and, after satisfaction of creditors,
cause Subordinated Notes held by the Property Trustee, having an aggregate
principal amount equal to the aggregate stated Liquidation Amount of, with an
interest rate identical to the Coupon Rate of, and accrued and unpaid interest
equal to accrued and unpaid Distributions on and having the same record date for
payment as the Securities, to be distributed to the Holders of the Securities,
in satisfaction of such Holders' interests in the Trust on a Pro Rata basis,
within 90 days following the occurrence of such Special Event (the "90 Day
Period"), PROVIDED, HOWEVER, that in the case of the occurrence of a Tax Event,
as a condition of such dissolution and distribution, the Regular Trustees shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the effect that
the Holders of the Securities will not recognize any gain or loss for United
States federal income tax purposes as a result of the dissolution of the Trust
and the distribution of Subordinated Notes and PROVIDED, FURTHER, that, if at
the time there is available to the Trust the opportunity to eliminate, within
the 90 Day Period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar reasonable
measure that has no adverse effect on the Trust, the Subordinated Note Issuer,
the Sponsor or the Holders of the Securities ("Ministerial Action"), the Trust
will pursue such Ministerial Action in lieu of dissolution; provided further,
that the Trust will not have any obligation to pursue such measure unless it is
reasonably satisfied, in reliance on an opinion of counsel or otherwise, that
such Ministerial Action can be completed within and the Special Event eliminated
within the first [45] days of such 90 Day Period.
If, in the case of the occurrence of a Tax Event (i) the Subordinated
Note Issuer has received an opinion (a "Redemption Tax Opinion") of a nationally
recognized independent tax counsel experienced in such matters that, as a result
of a Tax Event, there is more than an insubstantial risk that the Subordinated
Note Issuer would be precluded from deducting the interest on the Subordinated
Notes for United States federal income tax purposes even after the Subordinated
Notes were distributed to the Holders of Securities in liquidation of such
Holders' interests in the Trust as described in this paragraph 4(c), or (ii) the
Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, the Subordinated Note
Issuer shall have the right at any time, upon not less than 30 nor more than 60
days notice, to redeem the Subordinated Notes in whole or in part for cash
within 90 days following the occurrence of such Tax Event, and following such
redemption, Securities with an aggregate Liquidation Amount equal to the
aggregate principal amount of the Subordinated Notes so redeemed shall be
redeemed by the Trust at the Redemption Price on a Pro Rata basis; PROVIDED,
HOWEVER, that, if at the time there is available to the Trust the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some Ministerial
Action, the Trust or the Subordinated Note Issuer will pursue such Ministerial
Action in lieu of redemption; provided further, that neither the Trust nor the
Subordinated Note Issuer will have any obligation to pursue such measure unless
it is reasonably satisfied, in reliance on an opinion of
A-3
47
counsel or otherwise, that such Ministerial Action can be completed within and
the Tax Event eliminated within the first [45] days of such 90 Day Period.
"Tax Event" means that the Regular Trustees shall have received an opinion
of a nationally recognized independent tax counsel experienced in such matters
(a "Dissolution Tax Opinion") to the effect that on or after the date of the
Prospectus Supplement, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority therefore
or therein, or (b) any amendment to, or change in, an interpretation or
application of any such laws or regulations by any legislative body, court,
governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after the date of the Prospectus Supplement, there is more than an
insubstantial risk 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 interest
accrued or received on the Subordinated Notes, (ii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de minimis amount of
taxes, duties or other governmental charges, or (iii) interest payable by the
Subordinated Note Issuer to the Trust on the Subordinated Notes is not, or
within 90 days of the date thereof will not be, deductible, in whole or in part,
by the Subordinated Note Issuer for United States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of a nationally recognized independent counsel experienced
in practice under the Investment Company Act that, as a result of the occurrence
of a change in law or regulation or a written 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"), there is more than
an insubstantial risk that the Trust is or will be considered an Investment
Company which is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after the date of the
issuance of the Preferred Securities.
(d) On and from the date fixed by the Regular Trustees for any distribution
of Subordinated Notes and dissolution of the Trust: (i) the Securities will no
longer be deemed to be outstanding, (ii) The Depository Trust Company (the
"Depositary") or its nominee (or any successor Depositary or its nominee), as
the record Holder of the Preferred Securities, will receive a registered global
certificate or certificates representing the Subordinated Notes to be delivered
upon such distribution and any certificates representing Common Securities,
except for certificates representing Preferred Securities held by the Depositary
or its nominee (or any successor Depositary or its nominee), will be deemed to
represent beneficial interests in the Subordinated Notes having an aggregate
principal amount equal to the aggregate stated Liquidation Amount until such
certificates are presented to the Subordinated Note Issuer or its agent for
transfer or reissue.
The Trust may not redeem fewer than all the outstanding Securities unless
all accrued and unpaid Distributions have been paid on all Securities for all
quarterly Distribution periods terminating on or before the date of redemption.
(e) If the Subordinated Notes are distributed to holders of the Securities,
pursuant to the terms of the Indenture, the Subordinated Note Issuer will use
its best efforts to have the Subordinated Notes listed on the New York Stock
Exchange or on such other exchange as the Preferred Securities were listed
immediately prior to the distribution of the Subordinated Notes.
(f) REDEMPTION OR DISTRIBUTION PROCEDURES.
(i) Notice of any redemption of, or notice of distribution of
Subordinated Notes in exchange for the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of
A-4
48
Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days
before the date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Subordinated Notes. For
purposes of the calculation of the date of redemption or exchange and the dates
on which notices are given pursuant to this paragraph 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed, by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
Register. No defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the validity of the
redemption or exchange proceedings with respect to any other Holder.
(ii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice which notice may only be issued if the
Subordinated Notes are redeemed as set out in this paragraph 4 (which notice
will be irrevocable) then (a) while the Preferred Securities are in book-entry
only form, with respect to the Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the Subordinated Note Issuer
has paid the Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Subordinated Notes, the Property Trustee
will transfer by wire to the Depositary (or successor Depositary) funds
sufficient to pay the applicable Redemption Price with respect to the Preferred
Securities, and (b) if the Preferred Securities are issued in definitive form,
with respect to the Preferred Securities, and with respect to the Common
Securities, provided that the Subordinated Note Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the related redemption or
maturity of the Subordinated Notes, the Property Trustee will pay the relevant
Redemption Price to the Holders of such Securities by check mailed to the
address of the relevant Holder appearing on the Register on the record date of
the redemption date. If a Redemption/Distribution Notice shall have been given
and funds deposited as required, if applicable, then immediately prior to the
close of business on the date of such deposit, or on the redemption date, as
applicable, Distributions will cease to accrue on the Securities so called for
redemption and all rights of Holders of such Securities so called for redemption
will cease, except the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption Price. Neither the
Regular Trustees nor the Trust shall be required to register or cause to be
registered the transfer of any Securities which have been so called for
redemption. If any date fixed for redemption of Securities is not a Business
Day, then payment of the Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and no interest shall accrue as
a result of such delay) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date fixed
for redemption. If payment of the Redemption Price in respect of Securities is
improperly withheld or refused and not paid either by the Property Trustee or by
the Sponsor as guarantor pursuant to Preferred Securities Guarantee or Common
Securities Guarantee, as relevant, Distributions on such Securities will
continue to accrue, from the original redemption date to the actual date of
payment, in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to the Holders of the Securities as set forth on
the Register.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), provided the acquiror is not
the Holder of the Common Securities or an obligor under the Subordinated
Indenture, the Sponsor or any of its subsidiaries may at any time and from time
to time purchase outstanding Preferred Securities by tender, in the open market
or by private agreement.
5. VOTING RIGHTS - PREFERRED SECURITIES.
A-5
49
(a) Except as provided under paragraphs 5(b) and 7 and as otherwise required
by law and the Declaration, the Holders of the Preferred Securities will have no
voting rights.
(b) If (i) the Trust fails to make Distributions in full on the Preferred
Securities for 6 consecutive quarterly Distribution periods, or (ii) an Event of
Default occurs and is continuing (each of (i) and (ii) being an
Appointment Event), then the Holders of the Preferred Securities,
acting as a single class, will be entitled by the vote of a Majority in
Liquidation Amount of the Preferred Securities to appoint a Special Regular
Trustee in accordance with Section 5.6(a)(ii)(B) of the Declaration. Any Holder
of Preferred Securities (other than the Sponsor, or any entity directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Sponsor) will be entitled to nominate any person to be
appointed as Special Regular Trustee. For purposes of determining whether the
Trust has failed to make Distributions in full for 6 consecutive quarterly
Distribution periods, Distributions shall be deemed to remain in arrears,
notwithstanding any payments in respect thereof, until full cumulative
Distributions have been or contemporaneously are paid with respect to all
quarterly Distribution periods terminating on or prior to the date of payment of
such cumulative Distributions.
(c) Not later than 30 days after such right to appoint a Special Regular
Trustee arises, the Regular Trustees will convene a meeting for the purpose of
appointing a Special Regular Trustee. If the Regular Trustees fail to convene
such meeting within such 30-day period, the Holders of 10% in Liquidation Amount
of the Preferred Securities will be entitled to convene such meeting in
accordance with Section 12.2 of the Declaration. The record date for such
meeting will be the close of business on the Business Day which is one Business
Day before the day on which notice of the meeting is sent to Holders. The
provisions of the Declaration relating to the convening and conduct of the
meetings of the Holders will apply with respect to any such meeting.
(d) A Special Regular Trustee may be removed without cause at any time by
vote of the Holders of a Majority in Liquidation Amount of the Preferred
Securities at a meeting of the Holders of the Preferred Securities in accordance
with Section 5.6(a)(ii)(B) of the Declaration. The Holders of 10% in Liquidation
Amount of the Preferred Securities will be entitled to convene such a meeting in
accordance with Section 12.2 of the Declaration. The record date for such
meeting will be the close of business on the Business Day which is one Business
Day before the day on which the notice of meeting is sent to Holders.
Notwithstanding the appointment of a Special Regular Trustee, the Subordinated
Note Issuer shall retain all rights under the Indenture, including the right to
extend the interest payment period on the Subordinated Notes.
(e) Subject to the requirements of the second to last sentence of this
paragraph, the Holders of a Majority in Liquidation Amount of the Preferred
Securities voting separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including (i) directing the time, method, place of conducting any
proceeding for any remedy available to the Subordinated Note Trustee, or
exercising any trust or power conferred on the Subordinated Note Trustee with
respect to the Subordinated Notes, (ii) waive any past default and its
consequences that is waivable under Section 6.09 of the Subordinated Indenture,
or (iii) exercise any right to rescind or annul a declaration that the principal
of all the Subordinated Notes shall be due and payable. The Property Trustee
shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Other than with respect to directing the
time, method and place of conducting any remedy available to the Property
Trustee or the Subordinated Note Trustee as set forth above, the Property
Trustee shall not take any action in accordance with the directions of the
Holders of the Preferred Securities under this paragraph unless the Property
Trustee has obtained an opinion of tax counsel to the effect that for the
purposes of United States federal income tax the Trust will not be classified as
an association taxable as a corporation or
A-6
50
a partnership and that each Holder of the Securities will be treated as owning
an undivided beneficial interest in the Subordinated Notes on account of such
action. If the Property Trustee fails to enforce its rights under the
Declaration, any Holder of Preferred Securities may, after a period of 30 days
has elapsed from such holder's written request to the Property Trustee to
enforce such rights, institute a legal proceeding directly against any Person to
enforce the Property Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee or any other Person.
(f) Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
(g) No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Subordinated Notes in accordance with the Declaration and the
terms of the Securities.
(h) In determining whether the Holders of the requisite amount of Preferred
Securities have voted, Preferred Securities which are owned by the Sponsor, the
Trust or any other obligor on the Preferred Securities or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Sponsor, the Trust or any other obligor on the Preferred
Securities shall be disregarded for the purpose of any such determination.
6. VOTING RIGHTS - COMMON SECURITIES.
(a) Except as provided under paragraphs 6(b), 6(c) and 7 and as otherwise
required by law and the Declaration, the Holders of the Common Securities will
have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace any Trustee
or to increase or decrease the number of Trustees subject to the exclusive right
of the Holders of the Preferred Securities to appoint, remove or replace a
Special Regular Trustee.
(c) Subject to Section 2.6 of the Declaration and only after all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated and subject to the requirements of the second to last
sentence of this paragraph, the Holders of a Majority in Liquidation Amount of
the Common Securities voting separately as a class may direct the time, method,
and place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property Trustee
under the Declaration, including (i) directing the time, method, place of
conducting any proceeding for any remedy available to the Subordinated Note
Trustee, or exercising any trust or power conferred on the Subordinated Note
Trustee with respect to the Subordinated Notes, (ii) waive any past default and
its consequences that is waivable under Section 6.09 of the Subordinated
Indenture, or (iii) exercise any right to rescind or annul a declaration that
the principal of all the Subordinated Notes shall be due and payable, provided,
however, that where a consent or action under the Indenture would require the
consent or act of the Holders of greater than a majority in principal amount of
Subordinated Notes affected thereby (a "Super Majority"), the Property Trustee
may only give such consent or take such action
A-7
51
at the direction of the Holders of at least the proportion in Liquidation Amount
of the Common Securities which the relevant Super Majority represents of the
aggregate principal amount of the Subordinated Notes outstanding. Pursuant to
this paragraph 6(c), the Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and place of conducting
any remedy available to the Property Trustee or the Subordinated Note Trustee as
set forth above, the Property Trustee shall not take any action in accordance
with the directions of the Holders of the Common Securities under this paragraph
unless the Property Trustee has obtained an opinion of tax counsel to the effect
that for the purposes of United States federal income tax the Trust will not be
classified as an association taxable as a corporation or a partnership and that
each Holder of the Securities will be treated as owning an undivided beneficial
interest in the Subordinated Notes on account of such action. If the Property
Trustee fails to enforce its rights under the Declaration, any Holder of Common
Securities may, after a period of 30 days has elapsed from such holder's written
request to the Property Trustee to enforce such rights, institute a legal
proceeding directly against any Person to enforce the Property Trustee's rights
under the Declaration, without first instituting a legal proceeding against the
Property Trustee or any other Person.
(d) Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
(e) No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Subordinated Notes in accordance with the Declaration and the terms of the
Securities.
A-8
52
7. AMENDMENTS TO DECLARATION AND INDENTURE
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the Regular
Trustees otherwise propose to effect, (i) any action that would adversely affect
the powers, preferences or special rights of the Preferred Securities, whether
by way of amendment to the Declaration or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than as described in Section 8.1
of the Declaration, then the Holders of outstanding Preferred Securities as a
class, will be entitled to vote on such amendment or proposal (but not on any
other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
Liquidation Amount of the Securities, voting together as a single class,
provided, however, that the rights of Holders of Preferred Securities under
Article V of the Declaration to appoint, remove or replace a Special Regular
Trustee shall not be amended without the consent of each Holder of Preferred
Securities, provided, further, if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in Liquidation Amount of such class of
Securities. In determining whether the Holders of the requisite amount of
Preferred Securities have voted, Preferred Securities which are owned by the
Sponsor, the Trust or any other obligor on the Preferred Securities or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Sponsor, the Trust or any other obligor on the
Preferred Securities shall be disregarded for the purpose of any such
determination.
(b) In the event the consent of the Property Trustee as the holder of the
Subordinated Notes is required under the Indenture with respect to any
amendment, modification or termination of the Indenture, the Subordinated Notes,
the Property Trustee shall request the direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in Liquidation Amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of the holders of greater than a majority in aggregate principal
amount of the Subordinated Notes (a "Super Majority"), the Property
Trustee may only give such consent at the direction of the Holders of at least
the proportion in Liquidation Amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Subordinated Notes
outstanding; provided, further, that the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Securities under
this paragraph 7(b) unless the Property Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United Stated federal income tax
the Trust will not be classified as an association taxable as a corporation or a
partnership and that each Holder of the Securities will be treated as owning an
undivided beneficial interest in the Subordinated Notes on account of such
action.
8. PRO RATA
A reference in these terms of the Securities to any payment, distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder of Securities
according to the aggregate Liquidation Amount of the Securities held by the
relevant Holder in relation to the aggregate Liquidation Amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate Liquidation Amount of
Preferred Securities held by the relevant Holder relative to the aggregate
Liquidation Amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate Liquidation
Amount of Common Securities held by the relevant Holder relative to the
aggregate Liquidation Amount of all Common Securities outstanding.
A-9
53
9. RANKING.
The Preferred Securities rank pari passu and payment thereon shall be made
Pro Rata with the Common Securities except that where an Event of Default occurs
and is continuing under the Subordinated Indenture in respect of the
Subordinated Notes held by the Property Trustee, the rights of Holders of the
Common Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to payment
of the Holders of the Preferred Securities.
10. ACCEPTANCE OF SECURITIES GUARANTEE AND INDENTURE
Each Holder of Preferred Securities and Common Securities, by the acceptance
thereof, agrees to the provisions of the Preferred Securities Guarantee and the
Common Securities Guarantee, respectively, including the subordination
provisions therein and to the provisions of the Indenture.
11. NO PREEMPTIVE RIGHTS.
The Holders of the Securities shall have no preemptive rights to subscribe
for any additional Securities.
12. MISCELLANEOUS.
These terms constitute a part of the Declaration and may be amended only in
accordance with the terms of the Declaration.
The Securities shall be governed in accordance with the laws of the State of
___________.
The Trust will provide a copy of the Declaration, the Preferred Securities
Guarantee and the Indenture to a Holder without charge on written request to the
Trust at its principal place of business.
A-10