Exhibit 4-11
EXELON CAPITAL TRUST __
AMENDED AND RESTATED DECLARATION OF TRUST
among
EXELON CORPORATION, as Sponsor,
WACHOVIA TRUST COMPANY, NATIONAL ASSOCIATION,
as Delaware Trustee and Property Trustee,
and
__________________, __________________ and ___________________
as Administrative Trustees
Dated as of ________, 200_
TABLE OF CONTENTS
Article 1 Defined Terms...........................................................................................1
Section 1.01 Definitions..........................................................................1
Article 2 Establishment of the Trust..............................................................................9
Section 2.01 Name.................................................................................9
Section 2.02 Offices of the Trustees; Principal Place of Business.................................9
Section 2.03 Organizational Expenses..............................................................9
Section 2.04 Issuance of the Preferred Securities.................................................9
Section 2.05 Purchase of Debentures; Issuance of the Common Securities...........................10
Section 2.06 Amended and Restated Declaration of Trust...........................................10
Section 2.07 Authorization to Enter into Certain Transactions....................................10
Section 2.08 Assets of Trust.....................................................................14
Section 2.09 Title to Trust Property.............................................................14
Section 2.10 Mergers and Consolidations of the Trust.............................................14
Article 3 Payment Account........................................................................................15
Section 3.01 Payment Account.....................................................................15
Article 4 Distributions; Redemption..............................................................................15
Section 4.01 Distributions.......................................................................15
Section 4.02 Redemption..........................................................................17
Section 4.03 Subordination of Common Securities..................................................18
Section 4.04 Payment Procedures..................................................................19
Section 4.05 Tax Returns and Reports.............................................................19
Article 5 Trust Securities Certificates..........................................................................19
Section 5.01 Initial Ownership...................................................................19
Section 5.02 The Trust Securities Certificates...................................................19
Section 5.03 Authentication of Trust Securities Certificates.....................................20
Section 5.04 Registration of Transfer and Exchange of Preferred Securities
Certificates........................................................................20
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..................21
Section 5.06 Persons Deemed Securityholders......................................................21
Section 5.07 Access to List of Securityholders' Names and Addresses..............................21
Section 5.08 Maintenance of Office or Agency.....................................................21
Section 5.09 Appointment of Paying Agent.........................................................22
Section 5.10 Ownership of Common Securities by Sponsor...........................................22
Section 5.11 Book-Entry Preferred Securities Certificates; Common Securities
Certificate.........................................................................22
Section 5.12 Notices to Clearing Agency..........................................................23
Section 5.13 Definitive Preferred Securities Certificates........................................23
Section 5.14 Rights of Securityholders...........................................................24
i
Article 6 Acts of Securityholders; Meetings; Voting..............................................................24
Section 6.01 Limitations on Voting Rights........................................................24
Section 6.02 Notice of Meetings..................................................................25
Section 6.03 Meetings of Preferred Securityholders...............................................25
Section 6.04 Voting Rights.......................................................................25
Section 6.05 Proxies, etc........................................................................26
Section 6.06 Securityholder Action by Written Consent............................................26
Section 6.07 Record Date for Voting and Other Purposes...........................................26
Section 6.08 Acts of Securityholders.............................................................26
Section 6.09 Inspection of Records...............................................................27
Article 7 Representations and Warranties of the Property Trustee and Delaware Trustee............................27
Section 7.01 Representations and Warranties of Property Trustee..................................27
Section 7.02 Representations and Warranties of Delaware Trustee..................................28
Article 8 The Trustees...........................................................................................28
Section 8.01 Certain Duties and Responsibilities.................................................28
Section 8.02 Notice of Defaults..................................................................30
Section 8.03 Certain Rights of Property Trustee..................................................30
Section 8.04 Not Responsible for Recitals or Issuance of Securities..............................31
Section 8.05 May Hold Securities.................................................................32
Section 8.06 Compensation; Fees; Indemnity.......................................................32
Section 8.07 Trustees Required; Eligibility......................................................33
Section 8.08 Conflicting Interests...............................................................33
Section 8.09 Co-Trustees and Separate Trustee....................................................33
Section 8.10 Resignation and Removal; Appointment of Successor...................................34
Section 8.11 Acceptance of Appointment by Successor..............................................35
Section 8.12 Merger, Conversion, Consolidation or Succession to Business.........................36
Section 8.13 Preferential Collection of Claims Against Sponsor or Trust..........................36
Section 8.14 Reports by Property Trustee.........................................................36
Section 8.15 Reports to the Property Trustee.....................................................37
Section 8.16 Evidence of Compliance with Conditions Precedent....................................37
Section 8.17 Number of Trustees..................................................................37
Section 8.18 Delegation of Power.................................................................37
Section 8.19 Enforcement of Rights of Property Trustee by Securityholders........................38
Article 9 Termination and Liquidation............................................................................38
Section 9.01 Termination Upon Expiration Date....................................................38
Section 9.02 Early Termination...................................................................38
Section 9.03 Termination.........................................................................39
Section 9.04 Liquidation.........................................................................39
Section 9.05 Bankruptcy..........................................................................40
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Article 10 Miscellaneous Provisions..............................................................................40
Section 10.01 Expense Agreement...................................................................40
Section 10.02 Limitation of Rights of Securityholders.............................................40
Section 10.03 Amendment...........................................................................40
Section 10.04 Separability........................................................................42
Section 10.05 Governing Law.......................................................................42
Section 10.06 Successors..........................................................................42
Section 10.07 Headings............................................................................42
Section 10.08 Notice and Demand...................................................................42
Section 10.09 Agreement Not to Petition...........................................................42
Section 10.10 Conflict with Trust Indenture Act...................................................43
Section 10.11 Counterparts........................................................................43
Section 10.12 No Preemptive Rights................................................................43
iii
CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act of 1939, as amended Amended and Restated
- --------------------------------------- Declaration of Trust
--------------------
310(a)(1) 8.07
310(a)(2) 8.07
310(a)(3) 8.09
310(a)(4) 2.07(B)
310(b) 8.08
311(a) 8.13
311(b) 8.13
312(a) 5.07
312(b) 5.07
312(c) 5.07
313(a) 8.14
313(b) 8.14
313(c) 8.14
313(d) 8.14
314(a) 8.15
314(b) Inapplicable
314(c)(1) 8.16, 1.01
314(c)(2) 8.16, 1.01
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 1.01
315(a) 8.01(a), 8.03(i)
315(b) 8.02, 10.08
315(c) 8.01(a)
315(d) 8.01, 8.03
315(e) Inapplicable
316(a) Inapplicable
316(a)(1)(A) Inapplicable
316(a)(1)(B) Inapplicable
316(a)(2) Inapplicable
316(b) Inapplicable
316(c) Inapplicable
317(a)(1) Inapplicable
317(a)(2) Inapplicable
__________________
* This Cross-Reference Table does not constitute part of the Amended and
Restated Declaration of Trust and shall not affect the interpretation of
any of its
AMENDED AND RESTATED DECLARATION OF TRUST
THIS AMENDED AND RESTATED DECLARATION OF TRUST is made as of
_________, 200_, by and among (i) Exelon Corporation, a Pennsylvania corporation
(the "Sponsor" or the "Company"), (ii) Wachovia Trust Company, National
Association, a national banking association, as Delaware trustee and property
trustee (the "Delaware Trustee" and the "Property Trustee," respectively, and,
in its separate corporate capacity and not in its capacity as Delaware Trustee
or Property Trustee, the "Bank"), (iii) ________________, an individual,
_______________, an individual, and _______________, an individual, as
administrative trustees (each an "Administrative Trustee" and together the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the "Trustees") and (iv) the
several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Sponsor, the Delaware Trustee and
_______________, as Administrative Trustee, have heretofore duly declared and
established a statutory trust pursuant to the Delaware Statutory Trust Act by
entering into that certain Declaration of Trust, dated as of August __, 2003
(the "Original Declaration of Trust"), and by the execution and filing by the
Delaware Trustee and _____________, as Administrative Trustee, with the
Secretary of State of the State of Delaware of the Certificate of Trust, dated
and filed on August __, 2003 (the "Certificate of Trust"); and
WHEREAS, the parties hereto desire to amend and restate the
Original Declaration of Trust in its entirety as set forth herein to provide
for, among other things, (i) the addition of the Bank, as Property Trustee, and
_____________ and _____________, as Administrative Trustees of the Trust, (ii)
the acquisition by the Trust from the Sponsor of all of the right, title and
interest in the Debentures, (iii) the issuance of the Common Securities by the
Trust to the Sponsor, and (iv) the issuance and sale of the Preferred Securities
by the Trust pursuant to the Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby amends and
restates the Original Declaration of Trust in its entirety and agrees as
follows:
Article 1
Defined Terms
Section 1.01 DefinitionsFor all purposes of this Amended and
Restated Declaration of Trust, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article 1 have the meanings
assigned to them in this Article 1 and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Amended and Restated Declaration of Trust; and
(d) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Amended and Restated Declaration
of Trust as a whole and not to any particular Article, Section or other
subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amounts" has the meaning specified in Section
4.01(b).
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the preamble to this Amended and
Restated Declaration of Trust solely in their capacities as Administrative
Trustees of the Trust and not in their individual capacities, or such trustee's
successor(s) in interest in such capacity, or any successor "Administrative
Trustee" appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Amended and Restated Declaration of Trust" means this Amended
and Restated Declaration of Trust, as the same may be modified, amended or
supplemented in accordance with the applicable provisions hereof, including all
exhibits hereto, and including, for all purposes of this Amended and Restated
Declaration of Trust and any modification, amendment or supplement hereto, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Amended and Restated Declaration of Trust and any such modification,
amendment or supplement, respectively.
"Bank" has the meaning specified in the preamble to this
Amended and Restated Declaration of Trust.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under federal bankruptcy law or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such
Person or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under federal bankruptcy law or any other applicable federal
or state law, or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
2
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Sponsor to have been duly adopted
by the Sponsor's Board of Directors or a duly authorized committee thereof and
to be in full force and effect on the date of such certification, and delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means
certificates representing Preferred Securities issued in global, fully
registered form to the Clearing Agency as described in Section 5.11.
"Business Day" means a day other than a Saturday or a Sunday
or any other day on which banking institutions in Wilmington, Delaware or New
York, New York are authorized or obligated by law, executive order or regulation
to close, or a day on which the Corporate Trust Office is closed for business.
"Certificate Depository Agreement" means the Letter of
Representations among the Trust, the Property Trustee and The Depository Trust
Company, as the initial Clearing Agency, dated _________, 200_, relating to the
Preferred Securities Certificates, as the same may be amended and supplemented
from time to time.
"Certificate of Trust" has the meaning specified in the
recitals to this Amended and Restated Declaration of Trust.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The Depository
Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form attached
as Exhibit A.
"Common Security" means an undivided beneficial interest in
the assets of the Trust having a Liquidation Amount of $______ and having the
rights provided therefor in this Amended and Restated Declaration of Trust,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Corporate Trust Office" means the office of the Property
Trustee or the Delaware Trustee, as the case may be, at which its corporate
trust business shall be principally administered, which office as of the date
hereof, in each such case, is located at One Rodney Square, 920 King Street,
Suite 102, Wilmington, DE 19801, Attention: Corporate Trust
Administration/Delaware, Facsimile No.: (302) 888-7544.
"Debentures" means the $__________ aggregate principal amount
of the Sponsor's ___% Deferrable Interest Subordinated Debentures due
____________ issued pursuant to the Subordinated Indenture.
3
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (i) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time.
"Delaware Trustee" means the commercial bank or trust company
or any other Person identified as the "Delaware Trustee" and has the meaning
specified in the preamble to this Amended and Restated Declaration of Trust
solely in its capacity as Delaware Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Distribution Date" has the meaning specified in Section
4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section
9.02.
"Event of Default" means the occurrence of an Indenture Event
of Default (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Guarantor and the Trust, substantially in the form
attached as Exhibit B, as amended from time to time.
"Extension Period" has the meaning specified in Section
4.01(b).
"Guarantee" means the Preferred Securities Guarantee Agreement
executed and delivered by the Guarantor and Wachovia Trust Company, National
Association, as Guarantee Trustee, contemporaneously with the execution and
delivery of this Amended and Restated Declaration of Trust, for the benefit of
the Holders of the Preferred Securities, as amended from time to time.
"Guarantor" means the Sponsor, its successors and assigns.
"Indenture Certificate" means the officer's certificate of the
Sponsor dated as of June 24, 2003 and issued pursuant to Section 2.01 of the
Subordinated Indenture.
"Indenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Indenture Redemption Date" means a date on which Debentures
are redeemed by the Sponsor pursuant to the Subordinated Indenture, whether upon
repayment, in whole or part, at maturity or upon early redemption (either at the
Sponsor's option or pursuant to a Special Event).
"Indenture Trustee" means the trustee under the Subordinated
Indenture.
4
"Issue Date" means the date of the delivery of the Trust
Securities.
"Legal Action" has the meaning specified in Section
2.07(A)(iv).
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation
Amount equal to the principal amount of Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture and the proceeds of which
will be used to pay the applicable Redemption Price of such Trust Securities and
(ii) Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $_____ per
Trust Security.
"Liquidation Date" means the date on which Debentures are to
be distributed to Holders of Trust Securities in connection with a dissolution
and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.05.
"Maturity Redemption Price" means, with respect to a
redemption of Trust Securities, an amount equal to the principal of and accrued
and unpaid interest on the Debentures as of the maturity date thereof.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Sponsor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Sponsor. An Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Amended and Restated Declaration of
Trust shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such officer's
opinion, to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Trustees, the Guarantor or the Sponsor, but
not an employee of the Trust or the Trustees, and who shall be reasonably
acceptable to the Property Trustee. Any Opinion of Counsel pertaining to federal
income tax matters may rely on published rulings of the Internal Revenue
Service.
5
"Optional Redemption Price" means, with respect to a
redemption of Trust Securities, an amount equal to the greater of:
(a) 100% of the principal amount of the Debentures being
redeemed, or
(b) as determined by the Quotation Agent, the sum of the
present values of scheduled payments of principal and interest thereon
for the Remaining Life, discounted to the redemption date on a
____________ basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus __%,
plus, in either case, accrued and unpaid interest on the Debentures being
redeemed, including any Compounded Interest and Additional Amounts (as such
terms are defined in the Indenture Certificate), to the redemption date.
"Original Declaration of Trust" has the meaning specified in
the recitals to this Amended and Restated Declaration of Trust.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Amended and Restated Declaration of
Trust, except:
(a) Preferred Securities theretofore canceled by the
Securities Registrar or delivered to the Securities Registrar for
cancellation;
(b) Preferred Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Amended and Restated Declaration of Trust; and
(c) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been authenticated and delivered
pursuant to this Amended and Restated Declaration of Trust;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Sponsor, the Holder of the Common Securities,
the Guarantor, any Administrative Trustee or any Affiliate of the Sponsor, the
Guarantor or any Administrative Trustee shall be disregarded and deemed not to
be Outstanding, except that (i) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities which such Trustee knows to
be so owned shall be so disregarded and (ii) the foregoing shall not apply at
any time when all of the Outstanding Preferred Securities are owned by the
Sponsor, the Holder of the Common Securities, the Guarantor, one or more
Administrative Trustees and/or any such Affiliate. Preferred Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Preferred Securities and that the
pledgee is not the Sponsor, the Guarantor or any Affiliate of the Sponsor or the
Guarantor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
6
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for the benefit of
the Securityholders in which all amounts paid in respect of the Debentures will
be held and from which the Property Trustee shall make payments to the
Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means an individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust having a Liquidation Amount of $_____ and having rights
provided therefor in this Amended and Restated Declaration of Trust, including
the right to receive Distributions and a Liquidation Distribution as provided
herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of a Preferred Security or Securities, substantially in the
form attached as Exhibit C.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Amended and
Restated Declaration of Trust solely in its capacity as Property Trustee of the
Trust and not in its individual capacity, or its successor in interest in such
capacity, or any successor "Property Trustee" as herein provided.
"Quotation Agent" has the meaning specified in the Indenture
Certificate.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Amended
and Restated Declaration of Trust; provided that each Indenture Redemption Date
shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means:
(a) in the case of the repayment of the Trust Securities as a
result of the repayment of the Debentures at maturity, the Maturity
Redemption Price;
(b) in the case of the redemption of Trust Securities as a
result of the optional redemption of the Debentures upon the occurrence
of a Special Event, the Special Event Redemption Price; and
(c) in the case of the redemption of Trust Securities as a
result of the optional redemption of the Debentures other than as a
result of the occurrence of a Special Event, the Optional Redemption
Price.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Remaining Life" has the meaning specified in the Indenture
Certificate.
"Responsible Officer" means, with respect to the Property
Trustee, any managing director, any vice president, any assistant vice
president, any assistant secretary, any assistant treasurer or any other officer
of the Corporate Trust Office of the Trustee customarily performing functions
7
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Securities Register" and "Securities Registrar" are described
in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person is a beneficial owner within the meaning of the Delaware Statutory Trust
Act.
"Special Event" has the meaning specified in the Indenture
Certificate.
"Special Event Redemption Price" means, with respect to a
redemption of Trust Securities, an amount equal to the greater of:
(a) 100% of the principal amount of the Debentures, or
(b) as determined by the Quotation Agent, the sum of the
present values of scheduled payments of principal and interest thereon
for the Remaining Life, discounted to the redemption date on a
____________ basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus __%,
plus, in either case, accrued and unpaid interest on the Debentures, including
any Compounded Interest and Additional Amounts (as such terms are defined in the
Indenture Certificate), to the redemption date.
"Sponsor" has the meaning specified in the preamble to this
Amended and Restated Declaration of Trust, and includes its successors and
assigns.
"Subordinated Indenture" means the Indenture, dated as of
_____________, between the Sponsor and the Indenture Trustee, as heretofore
supplemented and as supplemented by the Indenture Certificate.
"Successor Securities" has the meaning specified in Section
2.10.
"Treasury Rate" has the meaning specified in the Indenture
Certificate.
"Trust" means the Delaware statutory trust continued hereby
and identified on the cover page to this Amended and Restated Declaration of
Trust.
"Trustees" means the Persons identified as "Trustees" in the
preamble to this Amended and Restated Declaration of Trust solely in their
capacities as Trustees of the Trust and not in their individual capacities, or
their successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" shall mean, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
8
"Trust Property" means (i) the Debentures, (ii) any cash on
deposit in, or owing to, the Payment Account, and (iii) all proceeds and rights
in respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to this Amended and
Restated Declaration of Trust.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated __________, 200_, among the Sponsor, the Trust and the Underwriters named
therein.
Article 2
Establishment of the Trust
Section 2.01 Name
The Trust continued hereby shall be known as "Exelon Capital Trust __,"
in which name the Trustees may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and sue and be
sued. The Administrative Trustees may change the name of the Trust from time to
time following written notice to the Holders and the other Trustees.
Section 2.02 Offices of the Trustees; Principal Place of Business
The address of the Property Trustee and the Delaware Trustee is c/o
Wachovia Trust Company, National Association, One Rodney Square, 920 King
Street, Suite 102, Wilmington, DE 19801, Attention: Corporate Trust
Administration/Delaware, or such other address as the Property Trustee or
Delaware Trustee may designate by written notice to the Securityholders, the
Sponsor and the Guarantor. The address of the Administrative Trustees is c/o
Exelon Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box 805379,
Chicago, IL 60680, Attention: Secretary. The principal place of business of the
Trust is c/o Exelon Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box
805379, Chicago, IL 60680. The Sponsor may change the principal place of
business of the Trust at any time by giving notice thereof to the Trustees.
Section 2.03 Organizational Expenses
The Sponsor shall pay organizational expenses of the Trust as they
arise or shall, upon request of the Trustees, promptly reimburse the Trustees
for any such expenses paid by the Trustees. The Sponsor shall make no claim upon
the Trust Property for the payment of such expenses.
Section 2.04 Issuance of the Preferred Securities
Contemporaneously with the execution and delivery of this Amended and
Restated Declaration of Trust, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the underwriters named in the Underwriting
Agreement Preferred Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate number of _______
Preferred Securities having an aggregate Liquidation Amount of $__________,
against receipt of the aggregate purchase price of such Preferred Securities of
$__________.
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Section 2.05 Purchase of Debentures; Issuance of the Common Securities
Contemporaneously with the execution and delivery of this Amended and
Restated Declaration of Trust, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Sponsor Common Securities Certificates,
registered in the name of the Sponsor, in an aggregate number of _______ Common
Securities having an aggregate Liquidation Amount of $__________, against
payment by the Sponsor of $__________. Contemporaneously therewith, the
Administrative Trustees, on behalf of the Trust, shall purchase from the Sponsor
Debentures, registered in the name of the Property Trustee, on behalf of the
Trust and the Holders, and having an aggregate principal amount equal to
$__________, and, in satisfaction of the purchase price for such Debentures, the
Administrative Trustees, on behalf of the Trust, shall deliver to the Sponsor
the sum of $____________.
Section 2.06 Amended and Restated Declaration of Trust
The exclusive purposes and functions of the Trust are (i) to issue and
sell the Trust Securities and use the proceeds from such sale to acquire the
Debentures, and (ii) to engage in those activities necessary, incidental,
appropriate or convenient thereto. The Sponsor hereby appoints the Trustees, as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein for
the benefit of the Trust and the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees for the sole and limited purpose of fulfilling the requirements of
the Delaware Statutory Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions
The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Amended and Restated Declaration of Trust. Subject to the
limitations set forth in paragraph C of this Section 2.07, Article 8, and in
accordance with the following paragraphs A and B, the Trustees shall have the
power and authority, and hereby are authorized, to enter into all transactions
and agreements determined by the Trustees to be appropriate in exercising the
authority, express (in the case of the Property Trustee) or implied, otherwise
granted to the Trustees under this Amended and Restated Declaration of Trust,
and to perform all acts in furtherance thereof, including without limitation,
the following:
A. As among the Trustees, the Administrative Trustees, acting singly or
jointly, shall have the exclusive power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(i) establish and maintain a Payment Account pursuant to
Article III or otherwise in accordance with this Amended and Restated
Declaration of Trust;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Trust
Securities to the extent the Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Amended and Restated
Declaration of Trust, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution pursuant to terms
of this Amended and Restated Declaration of Trust of Debentures to
Holders of Trust Securities;
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(iv) subject to the terms hereof, take any Legal Action which
arises out of or in connection with an Event of Default of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Amended and
Restated Declaration of Trust or the Trust Indenture Act;
(v) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of
this Amended and Restated Declaration of Trust;
(vi) to acquire the Debentures with the proceeds of the sale
of the Trust Securities; provided, however, the Administrative Trustees
shall cause legal title to all of the Debentures to be vested in, and
the Debentures to be held of record in the name of, the Property
Trustee for the benefit of the Holders of the Trust Securities;
(vii) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in
the Indenture Certificate) and to, at its option, take any ministerial
actions in connection therewith; provided, that the Administrative
Trustees shall consult with the Sponsor and the Property Trustee before
taking any ministerial action in relation to a Special Event;
(viii) to establish a record date with respect to all actions
to be taken hereunder that require a record date be established,
including for the purposes of ss. 316(c) of the Trust Indenture Act and
with respect to Distributions, voting rights, redemptions, and
exchanges, and to issue relevant notices to Holders of the Trust
Securities as to such actions and applicable record dates;
(ix) 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
2.07(B)(iv), the Property Trustee has the power to bring such Legal
Action;
(x) 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;
(xi) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(xii) to give the certificate on behalf of the Company, as
obligor (as defined in the Trust Indenture Act), to the Property
Trustee required by ss. 314(a)(4) of the Trust Indenture Act, which
certificate may be executed by any Administrative Trustee;
(xiii) to take all actions and perform such duties on behalf
of the Trust as may be required of the Administrative Trustees pursuant
to the terms of this Amended and Restated Declaration of Trust;
(xiv) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory 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 Trust Securities or to enable the Trust to effect
the purposes for which the Trust has been created;
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(xv) 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
Administrative Trustees, on behalf of the Trust;
(xvi) to issue and sell the Trust Securities pursuant to the
terms of this Amended and Restated Declaration of Trust;
(xvii) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Underwriting Agreement
providing for the sale of the Preferred Securities, the Expense
Agreement and the Certificate Depository Agreement and such other
agreements as may be necessary or desirable in connection with the
consummation of the transactions contemplated hereby and thereby;
(xviii) to assist in the registration of the Preferred
Securities under the Securities Act and under state securities or blue
sky laws, and the qualification of this Amended and Restated
Declaration of Trust as a trust indenture under the Trust Indenture
Act;
(xix) to assist in the listing of the Preferred Securities
upon such securities exchanges or national trading markets, if any, as
shall be determined by the Sponsor and, if required, the registration
of the Preferred Securities under the Exchange Act, and the
preparation, execution and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(xx) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Amended and Restated
Declaration of Trust;
(xxi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Securities Registrar in accordance with this
Amended and Restated Declaration of Trust;
(xxii) to assist in, to the extent provided in this Amended
and Restated Declaration of Trust, the winding up of the affairs of and
termination of the Trust and the preparation, execution and filing of
the certificate of cancellation with the Secretary of State of the
State of Delaware; and
(xxiii) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
B. The Property Trustee shall:
(i) establish and maintain the Payment Account pursuant to
Article III or otherwise in accordance with this Amended and Restated
Declaration of Trust;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Trust
Securities to the extent the Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Amended and Restated
Declaration of Trust, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution pursuant to terms
of this Amended and Restated Declaration of Trust of Debentures to
Holders of Trust Securities;
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(iv) subject to the terms hereof, take any Legal Action which
arises out of or in connection with an Event of Default of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's express duties and obligations under this Amended
and Restated Declaration of Trust or the Trust Indenture Act;
(v) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of
this Amended and Restated Declaration of Trust;
(vi) to the extent that it is designated as the Securities
Registrar, to register transfers of the Trust Securities and otherwise
take action with respect to the Trust Securities in accordance with the
express provisions of this Amended and Restated Declaration of Trust;
and
(vii) except as otherwise provided in this Section 2.07B, the
Property Trustee shall have none of the powers, duties, authority or
liabilities of the Administrative Trustees set forth in Section 2.07A.
C. So long as this Amended and Restated Declaration of Trust remains in
effect, the Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly provided
herein or contemplated hereby. In particular, the Trustees shall not (i) acquire
any investments or engage in any activities not authorized by this Amended and
Restated Declaration of Trust, (ii) sell, assign, transfer, exchange, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein, (iii) take or
consent to any action that would cause the Trust to fail or cease to qualify as
a grantor trust for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money, (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property, (vi) issue any
securities other than the Trust Securities, or (vii) have any power to, or agree
to any action by the Sponsor that would, vary the investment (within the meaning
of Treasury Regulation Section 301.7701-4(c)) of the Trust or of the
Securityholders. The Trustees shall defend all claims and demands of all Persons
at any time claiming any Lien on any of the Trust Property adverse to the
interest of the Trust or the Securityholders in their capacity as
Securityholders.
D. In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Sponsor in furtherance of the following prior to the date of this
Amended and Restated Declaration of Trust are hereby ratified and confirmed in
all respects):
(i) if required, to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 under the Securities
Act in relation to the Preferred Securities, including any amendments
thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
states;
(iii) if deemed necessary or advisable by the Sponsor, 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;
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(iv) if required, 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;
(v) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities; and
(vi) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States federal income
tax purposes and so that the Debentures will be treated as indebtedness of the
Sponsor for United States federal income tax purposes. In this connection, the
Sponsor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Amended and
Restated Declaration of Trust, that each of the Sponsor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the Holders of the Preferred Securities.
F. To the extent that Trust Property is deemed to be subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), Holders
of Preferred Securities that are "employee benefit plans" within the meaning of
section 3(3) of ERISA shall be deemed to have directed the Trustees to invest in
the Debentures.
Section 2.08 Assets of Trust
The assets of the Trust shall consist of the Trust Property.
Section 2.09 Title to Trust Property
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Securityholders and the Trust in
accordance with this Amended and Restated Declaration of Trust. The right, title
and interest of the Property Trustee to the Debentures shall vest automatically
in each Person who may thereafter be appointed as Property Trustee in accordance
with the terms hereof. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust
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 below or otherwise provided in this Amended and Restated Declaration
of Trust. The Trust may at the request of the Sponsor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Trust
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 either (x)
expressly assumes all of the obligations of the Trust with respect to the Trust
Securities or (y) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (herein referred
to as the "Successor Securities") so long as the Successor Securities rank the
same as the Preferred Securities rank in priority with respect to Distributions
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and payments upon liquidation, redemption and otherwise, (ii) the Sponsor
expressly appoints a trustee of such successor entity possessing substantially
the same powers and duties as the Property Trustee as the holder of legal title
to the Debentures, (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, if any, 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 Trust Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, or replacement, the Sponsor and the Property Trustee have received
an Opinion of Counsel 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 Trust Securities (including any Successor
Securities) in any material respect, (B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor such successor entity will be
required to register as an investment company under the Investment Company Act
of 1940 and (C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the successor entity) will continue to be classified
as a grantor trust for United States federal income tax purposes, and (viii) the
Sponsor guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Trust Securities, 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 the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
Article 3
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall
establish the Payment Account. The Property Trustee (and if deemed
necessary by the Property Trustee, an agent of the Property Trustee)
shall have exclusive control and sole right of withdrawal with respect
to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Amended
and Restated Declaration of Trust. All monies and other property
deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive
benefit of the Securityholders and for distribution as herein provided,
including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and
any other payments or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by the Property
Trustee pending distribution thereof.
Article 4
Distributions; Redemption
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative
and accrue from the Issue Date and, except in the event that the
Sponsor exercises its right to extend the interest payment period for
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the Debentures pursuant to Section __ of the Indenture Certificate,
shall be payable _____________ in arrears on ____________ and
____________ of each year, commencing on ____________, 2003. If any
date on which Distributions are otherwise payable on the Trust
Securities is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding day which 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, payment of such Distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as
if made on such date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of ___% per annum of the Liquidation Amount of the
Trust Securities, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears
for more than one ___________ period will bear interest thereon
compounded _____________ at ___% per annum (to the extent permitted by
applicable law). The amount of Distributions payable for any full
___________ period shall be computed on the basis of twelve 30-day
months and a 360-day year, and for any period shorter than a full month
for which Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed in any such partial
month. If the interest payment period for the Debentures is extended by
the Sponsor pursuant to Section __ of the Indenture Certificate (an
"Extension Period"), no interest shall be due and payable on the
Debentures. As a consequence of an Extension Period, Distributions will
also be deferred, provided that ___________ Distributions will continue
to accrue with interest thereon (to the extent permitted by applicable
law) at ___% per annum compounded _____________ ("Additional Amounts")
during any such Extension Period. Such deferred Distributions, together
with Additional Amounts, will be distributed to the Holders of the
Trust Securities as received at the end of any Extension Period;
provided, however, that the Trust may distribute such amounts earlier
if the Sponsor prepays interest accrued on the Debentures prior to the
end of any Extension Period as permitted by the Subordinated Indenture.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the extent
that the Trust has legally and immediately available funds in the
Payment Account for the payment of such Distributions.
(d) Distributions, including Additional Amounts, if any, on
the Trust Securities on each Distribution Date shall be payable to the
Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date. While the Preferred Securities
are in book-entry only form, the relevant record dates shall be one
Business Day prior to the relevant payment dates which payment dates
correspond to the interest payment dates on the Debentures. 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 Preferred
Securities are listed and, if none, shall be selected by the
Administrative Trustees, which dates shall be at least one Business Day
but not more than 60 Business Days before the relevant payment dates,
which payment dates correspond to the interest payment dates on the
Debentures. The relevant record dates for the Common Securities shall
be the same record date as for the Preferred Securities. Distributions
payable on the Trust Securities that are not punctually paid on any
Distribution Date as a result of the Sponsor having failed to make a
payment on the Debentures will cease to be payable to the Person in
whose name such Trust Securities are registered on the relevant record
date, and such defaulted Distribution will instead be payable to the
Person in whose name such Trust Securities are registered on the
special record date or other specified date determined in accordance
with the Subordinated Indenture.
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Each Trust Security upon registration of transfer of or in
exchange for or in lieu of any other Trust Security shall carry the rights of
Distributions accrued (including Additional Amounts, if any) and unpaid, and to
accrue (including Additional Amounts, if any), which were carried by such other
Trust Security.
Section 4.02 Redemption.
(a) On each Indenture Redemption Date with respect to the
Debentures (other than following the distribution of the Debentures to
the holders of Trust Securities pursuant to Section 9.04), the Trust
will be required to redeem a Like Amount of Trust Securities at the
applicable Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date to each Holder of
Trust Securities to be redeemed, at such Holder's address appearing in
the Securities Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the total Liquidation Amount of the Trust Securities to be
redeemed; and
(v) that on the Redemption Date the applicable Redemption
Price will become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accrue on and
after such date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the applicable Redemption Price with the proceeds
from the contemporaneous redemption of Debentures. Redemptions of the
Trust Securities shall be made and the applicable Redemption Price
shall be deemed payable on each Redemption Date only to the extent that
the Trust has funds legally and immediately available in the Payment
Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 2:00 p.m. New York time,
on the Redemption Date, subject to Section 4.02(c), the Property
Trustee will, so long as the Preferred Securities are in book-entry
only form, irrevocably deposit with the Clearing Agency for the
Preferred Securities funds sufficient to pay the applicable Redemption
Price. If the Preferred Securities are not in book-entry only form, the
Property Trustee, subject to Section 4.02(c), shall irrevocably deposit
with the Paying Agent funds sufficient to pay the applicable Redemption
Price and will give the Paying Agent (if other than the Property
Trustee) irrevocable instructions to pay such Redemption Price to the
Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as
they appear on the Securities Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding
Trust Securities so called for redemption will cease, except the right
of such Securityholders to receive the applicable Redemption Price, but
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without interest, and such Securities will cease to be outstanding. In
the event that any date on which any Redemption Price is payable is not
a Business Day, then payment of the applicable Redemption Price payable
on such date shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of
any such delay) except that, if such Business Day is in the next
succeeding calendar year, payment of such Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the
same force and effect as if made on such date. In the event that
payment of the applicable Redemption Price in respect of Trust
Securities is improperly withheld or refused and not paid either by the
Trust or by the Guarantor pursuant to the Guarantee, Distributions on
such Trust Securities will continue to accrue at the then applicable
rate, from such Redemption Date originally established by the Trust for
such Preferred Securities to the date such Redemption Price is actually
paid, and the actual payment date will be the Redemption Date for
purposes of calculating the applicable Redemption Price.
(e) If less than all the Outstanding Trust Securities are to
be redeemed on a Redemption Date, then, subject to Section 4.03, the
aggregate Liquidation Amount of Trust Securities to be redeemed shall
be allocated pro rata to the Holders of the Trust Securities, with such
adjustments that each amount so allocated shall be divisible by $_____.
The particular Preferred Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called
for redemption, by such method as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for a
redemption of portions (equal to $_____ or integral multiple thereof)
of the Liquidation Amount of Preferred Securities of a denomination
larger than $_____. The Property Trustee shall promptly notify the
Securities Registrar (if other than the Property Trustee) in writing of
the Preferred Securities selected for redemption and, in the case of
any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this
Amended and Restated Declaration of Trust, unless the context otherwise
requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the
Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
(f) Less than all the Outstanding Trust Securities may not be
redeemed unless all accrued and unpaid Distributions have been paid on
all Trust Securities for all ___________ distribution periods
terminating on or before the date of redemption.
(g) Subject to the foregoing provisions of this Section 4.02
and to applicable law (including, without limitation, United States
federal securities laws), the Sponsor, the Guarantor or their
Affiliates may, at any time and from time to time, purchase Outstanding
Preferred Securities by tender, in the open market or by private
agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the applicable Redemption Price of, the Trust
Securities, as the case may be, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however, that if
on any Distribution Date or Redemption Date an Indenture Event of
Default shall have occurred and be continuing, no payment of any
Distribution (including Additional Amounts, if applicable) on, or the
applicable Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition
of Common Securities, shall be made unless payment in full in cash of
all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all Outstanding Preferred Securities for all
distribution periods terminating on or prior thereto, or in the case of
payment of the applicable Redemption Price the full amount of such
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Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash
of all Distributions (including Additional Amounts, if applicable) on,
or the applicable Redemption Price of, Preferred Securities then due
and payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have waived
any such Event of Default under this Amended and Restated Declaration
of Trust until the effect of all such Events of Default with respect to
the Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Amended and
Restated Declaration of Trust with respect to the Preferred Securities
have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the
Holders of the Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
Section 4.04 Payment Procedures
Payments in respect of the Preferred Securities shall be made by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Securities Register or, if the Preferred Securities are held by a
Clearing Agency, such Distributions shall be made to the Clearing Agency, which
shall credit the relevant Persons' accounts at such Clearing Agency on the
applicable Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of the Common Securities.
Section 4.05 Tax Returns and Reports
The Administrative Trustee(s) shall prepare (or cause to be prepared),
at the Sponsor's expense, and file all United States federal, state and local
tax and information returns and reports required to be filed by or in respect of
the Trust. The Administrative Trustee(s) shall provide or cause to be provided
on a timely basis to each Holder any Internal Revenue Service form required to
be so provided in respect of the Trust Securities.
Article 5
Trust Securities Certificates
Section 5.01 Initial Ownership
Upon the creation of the Trust and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Sponsor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates
Each of the Trust Securities Certificates shall be issued in minimum
denominations of $_____ and integral multiples in excess thereof. The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee. Trust Securities
Certificates bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign on
behalf of the Trust, shall be validly issued and entitled to the benefits of
this Amended and Restated Declaration of Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Trust Securities Certificates or did not
hold such offices at the date of authentication and delivery of such Trust
Securities Certificates. A transferee of a Trust Securities Certificate shall
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become a Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates
On the Issue Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Sponsor signed by its Chairman of
the Board, its President or any Vice President, without further corporate action
by the Sponsor, in authorized denominations. No Trust Securities Certificate
shall entitle its holder to any benefit under this Amended and Restated
Declaration of Trust, or shall be valid for any purpose, unless there shall
appear on such Trust Securities Certificate a certificate of authentication
substantially in the form set forth in Exhibit A or Exhibit C, as applicable,
executed by the Property Trustee by manual signature; such authentication shall
constitute conclusive evidence that such Trust Securities Certificate shall have
been duly authenticated and delivered hereunder. All Trust Securities
Certificates shall be dated the date of their authentication. Upon the written
order of the Trust signed by the Administrative Trustees, the Property Trustee
shall authenticate and make available for delivery the Trust Security
Certificates.
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates
The Securities Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 5.08, a Securities Register in which,
subject to such reasonable regulations as it may prescribe, the Securities
Registrar shall provide for the registration of Preferred Securities
Certificates and the Common Securities Certificates (subject to Section 5.10 in
the case of the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, one or more of the Administrative Trustees shall execute and cause the
Property Trustee to authenticate and deliver in the name of the designated
transferee or transferees one or more new Preferred Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount dated the date
of authentication by the Property Trustee. The Securities Registrar shall not be
required to register the transfer of any Preferred Securities that have been
called for redemption. At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations of the same class and of a like aggregate Liquidation
Amount upon surrender of the Preferred Securities Certificates to be exchanged
at the office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or
surrendered for registration of transfer or exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Administrative
Trustees and the Securities Registrar duly executed by the Holder or his
attorney duly authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Securities Registrar in accordance with its
customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar or the Administrative Trustees may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in connection with
any transfer or exchange of Preferred Securities Certificates.
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Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates
If (i) any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (ii) there shall be delivered to the Securities
Registrar, the Property Trustee and the Administrative Trustees such security or
indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate shall have been
acquired by a protected purchaser, the Administrative Trustees or any one of
them on behalf of the Trust shall execute and cause the Property Trustee to
authenticate and make available for delivery, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section 5.05, the Administrative Trustees or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Trust
Securities Certificate issued pursuant to this Section 5.05 shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders
Prior to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions (subject to Section 4.01(d)) and for all
other purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses
The Administrative Trustees shall furnish or cause to be furnished to
(i) the Sponsor and the Property Trustee ____________, not later than
____________ and ____________ in each year, and (ii) the Sponsor or the Property
Trustee, as the case may be, within 30 days after receipt by any Administrative
Trustee of a request therefor from the Sponsor or the Property Trustee, as the
case may be, in writing, a list, in such form as the Sponsor or the Property
Trustee, as the case may be, may reasonably require, of the names and addresses
of the Securityholders as of a date not more than 15 days prior to the time such
list is furnished; provided, that the Administrative Trustees shall not be
obligated to provide such list at any time such list does not differ from the
most recent list given to the Sponsor and the Property Trustee by the
Administrative Trustees or at any time the Property Trustee is the Securities
Registrar. If three or more Securityholders or one or more Holders of Trust
Securities Certificates evidencing not less than __% of the outstanding
Liquidation Amount apply in writing to the Administrative Trustees, and such
application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Amended and Restated
Declaration of Trust or under the Trust Securities Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Securityholders. Each
Holder, by receiving and holding a Trust Securities Certificate, shall be deemed
to have agreed not to hold the Sponsor, the Property Trustee or the
Administrative Trustees accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
Section 5.08 Maintenance of Office or Agency
The Administrative Trustees shall maintain in the Borough of Manhattan,
New York, or Wilmington, Delaware, an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for registration of
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transfer or exchange and where notices and demands to or upon the Trustees in
respect of the Trust Securities Certificates may be served. The Administrative
Trustees initially designate the Corporate Trust Office of the Property Trustee,
Wachovia Trust Company, National Association, at its office for such purposes.
The Administrative Trustees shall give prompt written notice to the Sponsor and
to the Securityholders of any change in the location of the Securities Register
or any such office or agency.
Section 5.09 Appointment of Paying Agent
The Paying Agent shall make Distributions and other payments provided
hereby to Securityholders from the Payment Account and shall report the amounts
of such Distributions and payments to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
Distributions and payments provided hereby. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be the Property Trustee, and it may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Sponsor. Any Person acting as
Paying Agent shall be permitted to resign as Paying Agent upon 30 days written
notice to the Administrative Trustees and the Sponsor. In the event that a
Paying Agent shall resign or be removed, the Administrative Trustees shall
appoint a successor that is acceptable to the Sponsor to act as Paying Agent
(which shall be a bank or trust company). The Administrative Trustees shall
cause such successor Paying Agent or any additional Paying Agent appointed by
the Administrative Trustees to execute and deliver to the Trustees an instrument
in which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.10 Ownership of Common Securities by Sponsor
On the Issue Date, the Sponsor shall acquire, and thereafter retain,
beneficial and record ownership of the Common Securities. To the fullest extent
permitted by law, any attempted transfer of the Common Securities, except for
transfers by operation of law or to an Affiliate of the Guarantor or the Sponsor
or a permitted successor under the Subordinated Indenture, shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Sponsor to contain a legend stating "THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE AMENDED AND RESTATED DECLARATION OF TRUST REFERRED TO
HEREIN".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the
Trust. Such Preferred Securities Certificate or Certificates shall
initially be registered on the Securities Register in the name of Cede
& Co., the nominee of the initial Clearing Agency, and no Owner will
receive a definitive Preferred Securities Certificate representing such
beneficial owner's interest in such Preferred Securities, except as
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provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section
5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Amended and Restated Declaration of Trust relating to the Book-Entry
Preferred Securities Certificates (including the payment of principal
of and interest on the Book-Entry Preferred Securities and the giving
of instructions or directions to Owners of Book-Entry Preferred
Securities) as the sole Holder of Book-Entry Preferred Securities and
shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11
conflict with any other provisions of this Amended and Restated
Declaration of Trust, the provisions of this Section 5.11 shall
control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency
Participants.
(b) A Common Securities Certificate representing the Common
Securities shall be issued to the Sponsor in the form of a definitive
Common Securities Certificate.
Section 5.12 Notices to Clearing Agency
To the extent a notice or other communication to the Owners is required
under this Amended and Restated Declaration of Trust, unless and until
Definitive Preferred Securities Certificates shall have been issued to Owners
pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Holders to the Clearing Agency,
and shall have no obligations to provide notice to the Owners.
Section 5.13 Definitive Preferred Securities Certificates
If (i) the Sponsor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Sponsor is unable
to locate a qualified successor, or (ii) the Sponsor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency, then the Administrative Trustees shall notify the Clearing
Agency and Holders of the Preferred Securities. Upon surrender to the
Administrative Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees or any one of them shall execute and cause the Property
Trustee to authenticate and deliver the Definitive Preferred Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Securityholders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
23
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders
The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.09, and
the Securityholders shall not have any right or title therein other than an
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities, and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Amended and Restated Declaration of
Trust. The Trust Securities shall have no preemptive or other similar rights and
when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01, will be fully paid and nonassessable by the Trust and will be
entitled to the benefits of this Amended and Restated Declaration of Trust.
Except as otherwise provided in the Expense Agreement and Section 10.01 with
respect to the Holder of the Common Securities, the Holders of the Trust
Securities shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.
Article 6
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section 6.01, in Sections 8.10
or 10.03, in the Subordinated Indenture, and as otherwise required by
law, no Holder of Preferred Securities shall have any right to vote or
in any manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture
Trustee, or executing any trust or power conferred on the Indenture
Trustee with respect to such Debentures, (ii) waive any past default
which is waivable under the Subordinated Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, or to any other
action, as holder of the Debentures, under the Subordinated Indenture,
without, in each case, obtaining the prior approval of the Holders of
at least 66-2/3% in Liquidation Amount of the Preferred Securities;
provided, however, that where a consent under the Subordinated
Indenture would require the consent of each holder of Debentures
affected thereby, no such consent shall be given by the Trustees
without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred
Securities, except pursuant to a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all Holders of
the Preferred Securities of any notice of default received from the
Indenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the
Administrative Trustees and the Property Trustee shall, at the expense
of the Sponsor, obtain an Opinion of Counsel experienced in such
24
matters to the effect that the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes on
account of such action.
(c) If any proposed amendment to this Amended and Restated
Declaration of Trust provides for, or the 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 this Amended and Restated Declaration of Trust or
otherwise, or (ii) the dissolution, winding-up or termination of the
Trust, other than pursuant to the terms of this Amended and Restated
Declaration of Trust, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except
with the approval of the Holders of at least 66-2/3% in the Outstanding
Preferred Securities (based upon their Liquidation Amount). In addition
to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the
Administrative Trustees and the Property Trustee shall, at the expense
of the Sponsor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes on
account of such action.
Section 6.02 Notice of Meetings
Notice of all meetings of the Preferred Securityholders, stating the
time, place and purpose of the meeting, shall be given by the Administrative
Trustees pursuant to Section 10.08 to each Preferred Securityholder of record,
at his registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 6.03 Meetings of Preferred Securityholders
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Outstanding Preferred Securities (based upon their
Liquidation Amount) and the Administrative Trustees or the Property Trustee may,
at any time in their discretion, call a meeting of Preferred Securityholders to
vote on any matters as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their Liquidation Amount) present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than 66-2/3% of the Outstanding Preferred Securities (based upon their
Liquidation Amount) held by the Preferred Securityholders of record present,
either in person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Amended and Restated Declaration of Trust requires
a greater number of affirmative votes.
Section 6.04 Voting Rights
Securityholders shall be entitled to one vote for each $_____ of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
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Section 6.05 Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
may vote by proxy, provided that no proxy shall be voted at any meeting unless
it shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. A
Securityholder may grant a proxy by any means permitted by the General
Corporation Law of the State of Delaware. Only Securityholders of record shall
be entitled to vote. When Trust Securities are held jointly by several Persons,
any one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent
Any action which may be taken by Securityholders at a meeting may be
taken without a meeting if Securityholders holding at least 66-2/3% of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such other proportion thereof as shall be
required by any express provision of this Amended and Restated Declaration of
Trust) shall consent to the action in writing.
Section 6.07 Record Date for Voting and Other Purposes
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Amended and Restated Declaration of Trust, or
for the purpose of any other action, the Administrative Trustees may from time
to time fix a date, not more than 60 days prior to the date of any meeting of
Securityholders or the payment of a Distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08 Acts of Securityholders
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Amended and Restated Declaration
of Trust to be given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders in person or by an agent appointed in writing; and, except
as otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to the Administrative Trustees.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Amended and Restated Declaration of Trust and (subject to
Section 8.01) conclusive in favor of the Trustees, if made in the manner
provided in this Section 6.08.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustees deem sufficient.
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The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
Section 6.09 Inspection of Records
Upon reasonable notice to the Trustees, the records of the Trust, and
the records of any Trustee as such records relate to the Trust, shall be open to
inspection by Securityholders during normal business hours for any purpose
reasonably related to such Securityholder's interest as a Securityholder.
Article 7
Representations and Warranties of the Property Trustee and Delaware Trustee
Section 7.01 Representations and Warranties of Property Trustee
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Amended and
Restated Declaration of Trust, 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 national bank with trust powers
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Amended and Restated Declaration
of Trust;
(b) The execution, delivery and performance by the Property
Trustee of this Amended and Restated Declaration of Trust have been
duly authorized by all necessary corporate action on the part of the
Property Trustee. This Amended and Restated Declaration of Trust has
been duly executed and delivered by the Property Trustee and
constitutes a legal, valid and binding obligation of the Property
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law);
(c) The execution, delivery and performance of this Amended
and Restated Declaration of Trust by the Property Trustee do not
conflict with or constitute a breach of the charter or by-laws of the
Property Trustee; and
(d) No consent, approval or authorization of, or registration
with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Property
Trustee of this Amended and Restated Declaration of Trust.
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Section 7.02 Representations and Warranties of Delaware Trustee
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Amended and
Restated Declaration of Trust, and each Successor Delaware Trustee represents
and warrants to the Trust and the Sponsor at the time of the Successor Delaware
Trustee's acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Amended and Restated
Declaration of Trust;
(b) The execution, delivery and performance by the Delaware
Trustee of this Amended and Restated Declaration of Trust have been
duly authorized by all necessary corporate action on the part of the
Delaware Trustee. This Amended and Restated Declaration of Trust has
been duly executed and delivered by the Delaware Trustee and
constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law);
(c) No consent, approval or authorization of, or registration
with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Delaware
Trustee of this Amended and Restated Declaration of Trust; and
(d) The Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware.
Article 8
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees
shall be as provided by this Amended and Restated Declaration of Trust
and, in the case of the Property Trustee, the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Amended and
Restated Declaration of Trust shall require the Trustees to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any
of their rights or powers, if they shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to them. Whether or
not therein expressly so provided, every provision of this Amended and
Restated Declaration of Trust relating to the conduct or affecting the
liability of or affording protection to the Trustees shall be subject
to the provisions of this Section 8.01.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the
income and proceeds from the Trust Property and only to the extent that
there shall be sufficient income or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments in
accordance with the terms hereof. Each Securityholder, by its
acceptance of a Trust Security, agrees that it will look solely to the
income and proceeds from the Trust Property to the extent available for
distribution to it as herein provided and that the Trustees are not
personally liable to it for any amount distributable in respect of any
Trust Security or for any other liability in respect of any Trust
Security. This Section 8.01(b) does not limit the liability of the
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Trustees expressly set forth elsewhere in this Amended and Restated
Declaration of Trust and, in the case of the Property Trustee, in the
Trust Indenture Act.
(c) No Trustee shall be liable for its acts or omissions
hereunder except as a result of its own gross negligence (or ordinary
negligence in the case of the Property Trustee), willful misconduct or
bad faith. To the extent that, at law or in equity, a Trustee has
duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to the Securityholders, such Trustee shall not be liable
to the Trust or to any Securityholder for such Trustee's good faith
reliance on the provisions of this Amended and Restated Declaration of
Trust. The provisions of this Amended and Restated Declaration of
Trust, to the extent that they restrict the duties and liabilities of
the Trustees otherwise existing at law or in equity, are agreed by the
Sponsor and the Securityholders to replace such other duties and
liabilities of the Trustees (other than the mandatory duties and
liabilities of the Property Trustee under the Trust Indenture Act).
(d) No provision of this Amended and Restated Declaration of
Trust shall be construed to relieve the Property Trustee from liability
for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken 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 Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Amended and Restated
Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such Property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitation on liability
afforded to the Property Trustee under this Amended and Restated
Declaration of Trust and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree in writing
with the Sponsor, and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.01 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Amended and Restated
Declaration of Trust, nor shall the Property Trustee be liable for the
negligence, default or misconduct of the Administrative Trustees or the
Sponsor.
(e) Any direction or act of the Sponsor or the Administrative
Trustees contemplated by this Amended and Restated Declaration of Trust
shall be sufficiently evidenced by an Officers' Certificate;
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The Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement) or any filing under tax or
securities laws or any rerecording, refiling, or reregistration
thereof;
(f) Whenever in the administration of this Amended and
Restated Declaration of Trust the Property Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder as to which the Preferred
Securityholders are entitled to vote under the terms of this Amended
and Restated Declaration of Trust, the Property Trustee (i) may request
instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action; (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received; and (iii) shall be protected in acting in
accordance with such instructions; and
(g) Except as otherwise expressly provided by this Amended and
Restated Declaration of Trust, the Property Trustee shall not be under
any obligation to take any action that is discretionary under the
provisions of this Amended and Restated Declaration of Trust. No
provision of this Amended and Restated Declaration of Trust shall be
deemed to impose any duty or obligations on the Property Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which it
shall be illegal, or in which the Property Trustee shall be unqualified
or incompetent in accordance with applicable law, to perform any such
act or acts, or to exercise any such right, power, duty or obligation.
No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 8.02 Notice of Defaults
Within 90 days after the occurrence of any Event of Default, the
Property Trustee shall transmit, in the manner and to the extent provided in
Section 10.08, notice of any Event of Default known to the Property Trustee to
the Securityholders, the Administrative Trustees, the Guarantor and the Sponsor,
unless such Event of Default shall have been cured or waived.
Section 8.03 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.01:
(i) the Property Trustee may conclusively rely and shall be
protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, Officer's Certificate, written
representation of a Holder or transferee, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond, note or other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Amended and
Restated Declaration of Trust the Property Trustee is required to
decide between alternative courses of action, or (B) in construing any
of the provisions in this Amended and Restated Declaration of Trust the
Property Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein, or (C) the Property Trustee is
unsure of the application of any provision of this Amended and Restated
Declaration of Trust, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this
Amended and Restated Declaration of Trust, the Property Trustee shall
deliver a notice to the Sponsor requesting written instructions of the
Sponsor as to the course of action to be taken. The Property Trustee
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shall take such action, or refrain from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Sponsor; provided, however, that if the Property
Trustee does not receive such instructions of the Sponsor within ten
Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but
shall be under no duty to, take or refrain from taking such action not
inconsistent with this Amended and Restated Declaration of Trust as it
shall deem advisable and in the best interests of the Securityholders,
in which event the Property Trustee shall have no liability except for
its own bad faith, negligence or willful misconduct;
(iii) the Property Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Amended and
Restated Declaration of Trust at the request or direction of any of the
Securityholders pursuant to this Amended and Restated Declaration of
Trust, unless such Securityholders shall have offered to the Property
Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, note or other evidence of indebtedness
or other document, unless requested in writing to do so by one or more
Securityholders;
(vi) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Property Trustee shall not
be liable for the action, default or misconduct of such agents or
attorneys, provided that the Property Trustee shall be responsible for
its own negligence or recklessness with respect to selection of any
agent or attorney appointed by it hereunder; and
(vii) whenever in the administration of this Amended and
Restated Declaration of Trust the Property Trustee shall deem it
desirable that a matter, including the compliance of any covenant in
connection therewith or condition thereto, be established before
undertaking, suffering or omitting to take any action hereunder, the
Property Trustee may (unless other evidence thereof is herein
specifically prescribed), in the absence of bad faith on its part,
request and conclusively rely upon an Officer's Certificate which, upon
receipt of such request, shall be promptly delivered by the Sponsor or
the Administrative Trustees.
Section 8.04 Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Trust of the proceeds of the Trust Securities
in accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless a Responsible Officer shall have received
written notice from the Sponsor, any Holder or any other Trustee that such funds
are not legally available.
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Section 8.05 May Hold Securities
Except as provided in the definition of the term "Outstanding" in
Article 1, any Trustee or any other agent of the Trustees or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and may otherwise deal with the Trust with the same rights it would
have if it were not a Trustee or such other agent.
Section 8.06 Compensation; Fees; Indemnity.
The Sponsor agrees:
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Amended and Restated Declaration
of Trust (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except to the extent any
such expense, disbursement or advance is attributable to their willful
misconduct, gross negligence (ordinary negligence in the case of the
Property Trustee) or bad faith;
(3) to indemnify each of the Trustees and the Bank for, and to
hold each of the Trustees and the Bank harmless against, any and all
loss, damage, claims, liability or expense of any kind whatsoever to
the extent incurred without willful misconduct, gross negligence
(ordinary negligence in the case of the Property Trustee) or bad faith
on their part, arising out of or in connection with the acceptance or
administration of this Amended and Restated Declaration of Trust,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder; and
(4) to advance expenses (including legal fees) incurred by
each of the Trustees and the Bank in defending any claim, demand,
action, suit or proceeding, from time to time, 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 such
Trustee or the Bank, as the case may be, to repay such amount if it
shall be determined such Trustee or the Bank, as the case may be, is
not entitled to be indemnified as authorized in this Section 8.06.
The provisions of this Section 8.06 shall survive the
resignation or removal of any Trustee or the termination of this Amended and
Restated Declaration of Trust.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section 8.07, the combined
capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition
so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the
provisions of this Section 8.07, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article 8.
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(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at least
21 years of age or a legal entity that shall act through one or more
persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be
(i) a natural person who is at least 21 years of age and a resident of
the State of Delaware or (ii) a legal entity authorized to conduct a
trust business and with its principal place of business in the State of
Delaware that shall act through one or more persons authorized to bind
such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Amended and
Restated Declaration of Trust. To the extent permitted by the Trust Indenture
Act, the Property Trustee shall not be deemed to have a conflicting interest by
virtue of being trustee under the Guarantee.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Holder of the Common Securities and the
Property Trustee shall have power to appoint, and upon the written request of
the Property Trustee, the Sponsor shall for such purpose join with the Property
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by the
Property Trustee either to act as co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of any
such Trust Property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 8.09. If the Sponsor does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or in case an Indenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section 8.09 shall
satisfy the requirements of Section 8.07.
Should any written instrument from the Sponsor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Sponsor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
33
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Sponsor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 8.09, and, in case an Indenture
Event of Default has occurred and is continuing, the Property Trustee
shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Sponsor.
Upon the written request of the Property Trustee, the Sponsor shall
join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to
effectuate such resignation or removal. A successor to any co-trustee
or separate trustee so resigned or removed may be appointed in the
manner provided in this Section 8.09.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.10 Resignation and Removal; Appointment of Successor
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Relevant Trustee pursuant to this Article 8 shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
If the Relevant Trustee is an Administrative Trustee, such Relevant
Trustee may resign at any time by giving written notice thereof to the other
Trustees and to the Sponsor. If the Relevant Trustee is a Trustee other than an
Administrative Trustee, such Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument of acceptance
by a successor Relevant Trustee required by Section 8.11 shall not have been
delivered to the Relevant Trustee within 30 days after the giving of such notice
of resignation, the resigning Relevant Trustee may petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Holder
of the Common Securities. If an Indenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at such time by Act of
the Securityholders of a majority in Liquidation Amount of the Outstanding
Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust); provided, however, that an Administrative
Trustee may be appointed, removed or replaced only by an Act of the Holders of a
majority in Liquidation Amount of the Common Securities.
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holder of the Common Securities, by Act of
the Holder of the Common Securities delivered to the retiring Relevant Trustee,
34
shall promptly appoint a successor Relevant Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee (other than an Administrative Trustee)
shall resign, be removed or become incapable of continuing to act as the
Relevant Trustee at a time when an Indenture Event of Default shall have
occurred and be continuing, the Holders of Preferred Securities, by Act of the
Securityholders of a majority in Liquidation Amount of the Preferred Securities
then outstanding delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and the Relevant Trustee shall
comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed in accordance with this Section
8.10 and accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust Securities for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
The retiring Relevant Trustee shall give notice of each resignation and
each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and shall
give notice to the Sponsor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of this Amended
and Restated Declaration of Trust, in the event any Administrative Trustee or a
Delaware Trustee who is a natural person dies or becomes incompetent or
incapacitated or resigns, the vacancy created by such death, incompetence or
incapacity or resignation may be filled by (i) the act of the remaining
Administrative Trustee or (ii) otherwise by the Sponsor (with the successor in
each case being an individual who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this Amended and
Restated Declaration of Trust, in the event the Sponsor believes that any
Administrative Trustee has become incompetent or incapacitated, the Sponsor, by
notice to the remaining Trustees, may terminate the status of such Person as an
Administrative Trustee (in which case the vacancy so created will be filled in
accordance with the preceding sentence).
Section 8.11 Acceptance of Appointment by Successor
In case of the appointment hereunder of a successor Relevant Trustee,
every such successor Relevant Trustee so appointed shall execute, acknowledge
and deliver to the Trust and to the retiring Relevant Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Relevant Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on the request of the Sponsor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Relevant Trustee all the rights,
powers and trusts of the retiring Relevant Trustee and shall duly assign,
transfer and deliver to such successor Relevant Trustee all property and money
held by such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article 8.
35
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business
Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article 8, without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Sponsor or Trust
If and when the Property Trustee shall be or become a creditor of the
Sponsor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Sponsor or
Trust (or any such other obligor). For purposes of Section 311(b)(4) and (6) of
the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Sponsor or the Trust (or any such obligor) for the
purpose of financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the
goods, wares or merchandise or the receivables or proceeds arising from
the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Property Trustee
simultaneously with the creation of the creditor relationship with the
Sponsor or the Trust (or any such obligor) arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with
May 15, ____, if required by Section 313(a) of the Trust Indenture Act,
the Property Trustee shall transmit a brief report dated as of such May
15 with respect to any of the events specified in such Section 313(a)
that may have occurred since the later of the date of this Amended and
Restated Declaration of Trust or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the
times specified therein.
(c) Reports pursuant to this Section 8.14 shall be transmitted
in the manner and to the Persons required by Sections 313(c) and (d) of
the Trust Indenture Act.
Section 8.15 Reports to the Property Trustee
The Sponsor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and, within 120 days
after the end of each fiscal year of the Sponsor, the compliance certificate
36
required by Section 314(a)(4) of the Trust Indenture Act in the form and in the
manner required by Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent
Each of the Sponsor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Amended and Restated
Declaration of Trust that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given pursuant to Section 314(c)(1) of the Trust Indenture Act shall comply with
Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be five, provided
that the Sponsor by written instrument may increase or decrease the
number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a
Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not
operate to annul, dissolve or terminate the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in office,
regardless of their number (and notwithstanding any other provision of
this Amended and Restated Declaration of Trust), shall have all powers
granted to the Administrative Trustees and shall discharge the duties
imposed upon the Administrative Trustees by this Amended and Restated
Declaration of Trust.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any
documents contemplated in Section 2.07(A), including any registration
statement or amendment thereto filed with the Commission, or making any
other governmental filing; and
(b) The Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such things and
the execution of such instruments either in the name of the Trust or
the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the
provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders
If (i) the Trust fails to pay Distributions in full on the Preferred
Securities for more than ___ consecutive ___________ distribution periods, or
(ii) an Event of Default occurs and is continuing, then the Holders of Preferred
Securities will rely on the enforcement by the Property Trustee of its rights
against the Sponsor as the holder of the Debentures. In addition, the Holders of
a majority in aggregate Liquidation Amount of the Preferred Securities will have
the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Property Trustee or to direct the exercise of any
trust or power conferred upon the Property Trustee under this Amended and
Restated Declaration of Trust, including the right to direct the Property
Trustee to exercise the remedies available to it as a holder of the Debentures,
37
provided that such direction shall not be in conflict with any rule of law or
with this Amended and Restated Declaration of Trust, and could not involve the
Property Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate. If the Property Trustee fails to enforce its
rights under the Debentures, a Holder of Preferred Securities may, to the
fullest extent permitted by applicable law, institute a legal proceeding against
the Sponsor to enforce such Holder's rights under this Amended and Restated
Declaration of Trust without first instituting any legal proceeding against the
Property Trustee or any other Person, including the Trust; it being understood
and intended that no one or more of such Holders shall have any right in any
manner whatsoever by virtue of, or by availing of, any provision of this Amended
and Restated Declaration of Trust to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Amended and Restated Declaration of Trust, except in the manner herein provided
and for the equal and ratable benefit of all such Holders. Notwithstanding the
foregoing, to the fullest extent permitted by applicable law, a Holder of
Preferred Securities may institute a legal proceeding directly against the
Sponsor without first instituting a legal proceeding against or requesting or
directing that action be taken by the Property Trustee or any other Person, for
enforcement of payment to such Holder of principal of or interest on the
Debentures having a principal amount equal to the aggregate stated Liquidation
Amount of the Preferred Securities of such Holder on or after the due dates
therefor specified or provided for in the Debentures. The Sponsor shall be
subrogated to all rights of the Holders of Preferred Securities in respect of
any amounts paid to such Holders by the Sponsor pursuant to this Section 8.19.
Article 9
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date
The Trust shall automatically dissolve on ____________, ____ (the
"Expiration Date") or earlier pursuant to Section 9.02.
Section 9.02 Early Termination
Upon the first to occur of any of the following events (such first
occurrence, an "Early Termination Event"), the Trust shall be dissolved in
accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the
Sponsor, dissolution or liquidation of the Sponsor, or the dissolution
of the Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property Trustee
by the Sponsor at any time (which direction is optional and wholly
within the discretion of the Sponsor) to dissolve the Trust and
distribute the Debentures to Securityholders as provided in Section
9.04; and
(iii) the payment at maturity or redemption of all of the
Debentures, and the consequent payment of the Preferred Securities.
Section 9.03 Termination
The respective obligations and responsibilities of the Trust and the
Trustees created hereby shall terminate upon the latest to occur of the
following: (a) the distribution of the Debentures by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or,
38
upon the redemption of all of the Trust Securities pursuant to Section 4.02, the
distribution of all amounts or instruments required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the satisfaction of any
expenses owed by the Trust; (c) the discharge of all administrative duties of
the Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders; and (d) the filing
of a certificate of cancellation pursuant to the Delaware Statutory Trust Act.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of
Section 9.02 occurs, the Trust shall be liquidated and the Property
Trustee shall distribute the Debentures to the Securityholders as
provided in this Section 9.04.
(b) In connection with a distribution of the Debentures, each
Holder of Trust Securities shall be entitled to receive, after the
satisfaction (whether by payment or reasonable provision for payment)
of liabilities to creditors of the Trust (as evidenced by a certificate
of the Administrative Trustees), a Like Amount of Debentures. Notice of
liquidation shall be given by the Trustees by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder's
address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(c) In order to effect the winding up of the Trust and
distribution of the Debentures to Securityholders, the Property Trustee
shall establish a record date for such distribution (which shall be not
more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for
the Outstanding Trust Securities Certificates.
(d) After the Liquidation Date, (i) the Trust Securities will
no longer be deemed to be Outstanding, (ii) certificates representing a
Like Amount of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative
Trustees or their agent for exchange, (iii) any Trust Securities
Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which
a Distribution was made on such Trust Certificates until such
certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to
Holders of Trust Securities Certificates with respect to such
Debentures) and (iv) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders to
receive Debentures upon surrender of Trust Securities Certificates.
(e) The Sponsor will use its commercially reasonable best
efforts to have the Debentures that are distributed in exchange for the
Preferred Securities listed on such securities exchange as the
39
Preferred Securities are then listed. The Sponsor may elect to have the
Debentures issued in book-entry form to the Clearing Agency or its
nominee.
Section 9.05 Bankruptcy
If an Early Termination Event specified in clause (i) of Section 9.02
has occurred, the Trust shall be liquidated. The Property Trustee shall
distribute the Debentures to the Securityholders as provided in Section 9.04,
unless such distribution is determined by the Administrative Trustees not to be
practical, in which event the Holders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors, an amount equal to the Liquidation
Amount per Trust Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding-up pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that, if
an Indenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
Article 10
Miscellaneous Provisions
Section 10.01 Expense Agreement
The Sponsor shall, contemporaneously with the execution and delivery of
this Amended and Restated Declaration of Trust, execute and deliver the Expense
Agreement.
Section 10.02 Limitation of Rights of Securityholders
The death or incapacity of any Person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate this Amended and
Restated Declaration of Trust, nor dissolve, terminate or annul the Trust, nor
entitle the legal representatives or heirs of such Person or any Securityholder
for such Person, to claim an accounting, take any action or bring any proceeding
in and for a partition or winding up of the arrangements contemplated hereby,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
Section 10.03 Amendment.
(a) This Amended and Restated Declaration of Trust may be
amended from time to time by the Administrative Trustees and the
Sponsor, without the consent of any Securityholders or the other
Trustees, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Amended and Restated Declaration of Trust,
which shall not be inconsistent with the other provisions of this
Amended and Restated Declaration of Trust, provided, however, that any
such amendment shall not adversely affect in any material respect the
interests of any Securityholder, and provided further, that any such
admendment shall not adversely affect in any material respect the
rights, duties, immunities or liabilities of the other Trustees
(without the consent of such Trustees), or (ii) to modify, eliminate or
add to any provisions of this Amended and Restated Declaration of Trust
to such extent as shall be necessary to ensure that the Trust will not
be classified as other than a grantor trust for United States federal
income tax purposes at any time that any Trust Securities are
outstanding. Any amendments of this Amended and Restated Declaration of
Trust pursuant to this Section 10.03(a) shall become effective when
notice thereof is given to the
40
Securityholders. Except as provided in Section 10.03(c), any provision
in this Amended and Restated Declaration of Trust may be amended by the
Sponsor and the Administrative Trustees with (i) the consent of Trust
Securityholders representing not less than 66 2/3% (based upon
Liquidation Amounts) of the Outstanding Trust Securities (such consent
being obtained in accordance with Section 6.03 or 6.06) and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in
accordance with such amendment will not affect the Trust's status as a
grantor trust for United States federal income tax purposes or the
Trust's exemption from status of an "investment company" under the
Investment Company Act of 1940, as amended, provided that any such
amendment shall not adversely affect in any material respect the
rights, duties, immunitiies or liabilities of the other Trustees
(without the consent of such Trustees). The Sponsor and the
Administrative Trustees shall provide the other Trustees with notice of
any amendment made pursuant to this Section 10.03(a) without their
consent.
(b) In addition to and notwithstanding any other provision in
this Amended and Restated Declaration of Trust, without the consent of
each affected Securityholder, this Amended and Restated Declaration of
Trust may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date, (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such
payment on or after such date, or (iii) change the consent required
pursuant to this Section 10.03.
(c) Notwithstanding any other provisions of this Amended and
Restated Declaration of Trust, the Trustees shall not enter into or
consent to any amendment to this Amended and Restated Declaration of
Trust which would cause the Trust (i) to fail or cease to qualify for
exemption from status of an "investment company" under the Investment
Company Act of 1940, as amended or (ii) not to be characterized for
United States federal income tax purposes as a grantor trust and each
Securityholder not to be treated as owning an undivided beneficial
ownership interest in the Debentures.
(d) Without the consent of the Sponsor, this Amended and
Restated Declaration of Trust may not be amended in a manner which
imposes any additional obligation on the Sponsor. In executing any
amendment permitted by this Amended and Restated Declaration of Trust,
the Trustees shall be entitled to receive, and (subject to Section
8.03) shall be fully protected in relying upon an Opinion of Counsel
and an Officer's Certificate stating that the execution of such
amendment is authorized or permitted by this Amended and Restated
Declaration of Trust. Any Trustee may, but shall not be obligated to,
enter into any such amendment which affects such Trustee's own rights,
duties, immunities or liabilities under this Amended and Restated
Declaration of Trust or otherwise.
(e) In the event that any amendment to this Amended and
Restated Declaration of Trust is made, the Administrative Trustees
shall promptly provide to the Sponsor and the other Trustees a copy of
such amendment.
Section 10.04 Separability
In case any provision in this Amended and Restated Declaration of Trust
or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law
THIS AMENDED AND RESTATED DECLARATION OF TRUST AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS AMENDED AND RESTATED DECLARATION OF TRUST AND THE TRUST
41
SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF DELAWARE.
Section 10.06 Successors
This Amended and Restated Declaration of Trust shall be binding upon
and shall inure to the benefit of any successor to the Trust, the Trustees and
the Sponsor, including any successor by operation of law.
Section 10.07 Headings
The Article and Section headings are for convenience only and shall not
affect the construction of this Amended and Restated Declaration of Trust.
Section 10.08 Notice and Demand
Any notice, demand or other communication which by any provision of
this Amended and Restated Declaration of Trust is required or permitted to be
given or served to or upon any Securityholder or the Sponsor may be given or
served in writing by deposit thereof, first-class postage prepaid, in the United
States mail, hand delivery or facsimile transmission, in each case, addressed,
(i) in the case of a Preferred Securityholder, to such Preferred Securityholder
as such Securityholder's name and address appear on the Securities Register and
(ii) in the case of the Common Securityholder or the Sponsor, to Exelon
Corporation, 10 South Dearborn Street - 37th Floor, P.O. Box 805379, Chicago, IL
60680, Attention: Treasurer, Facsimile No. (312) ___-____. Such notice, demand
or other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Amended and Restated Declaration of Trust is required or permitted to be
given or served to or upon the Trust or the Trustees shall be given in writing
addressed (until another address is published by the Trust) as follows: (i) with
respect to the Property Trustee and the Delaware Trustee, Wachovia Trust
Company, National Association, One Rodney Square, 920 King Street, Suite 102,
Wilmington, DE 19801, Attention: Corporate Trust Administration/Delaware,
Facsimile No: (302) 888-7544; and (ii) with respect to the Administrative
Trustees, to them at the address above for notices to the Sponsor, marked
Attention: Administrative Trustees of Exelon Capital Trust __, c/o Secretary.
Such notice, demand or other communication to or upon the Trust or the Trustees
shall be deemed to have been sufficiently given or made only upon actual receipt
of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition
Each of the Trustees and the Sponsor agrees for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article 9, it shall not file, or join in the
filing of, a petition against the Trust under any bankruptcy, reorganization,
arrangement, insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy Laws")
or otherwise join in the commencement of any proceeding against the Trust under
any Bankruptcy Law. In the event the Sponsor takes action in violation of this
Section 10.09, the Property Trustee agrees, for the benefit of Securityholders,
that it shall file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Sponsor against the Trust or the
commencement of such action and raise the defense that the Sponsor has agreed in
writing not to take such action and should be stopped and precluded therefrom
and such other defenses, if any, as counsel for the Trustees or the Trust may
assert. The provisions of this Section 10.09 shall survive the termination of
this Amended and Restated Declaration of Trust.
42
Section 10.10 Conflict with Trust Indenture Act.
(a) This Amended and Restated Declaration of Trust is subject
to the provisions of the Trust Indenture Act that are required to be
part of this Amended and Restated Declaration of Trust and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this
Amended and Restated Declaration of Trust by any of the provisions of
the Trust Indenture Act, such required provision shall control.
(d) The application of the Trust Indenture Act to this Amended
and Restated Declaration of Trust shall not affect the nature of the
Trust Securities as equity securities representing undivided beneficial
interests in the assets of the Trust.
Section 10.11 Counterparts
This Amended and Restated Declaration of Trust may contain more than
one counterpart of the signature page and this Amended and Restated Declaration
of Trust 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.
Section 10.12 No Preemptive Rights
Holders of Trust Securities shall have no preemptive or similar rights
to subscribe for any additional securities of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS AMENDED AND RESTATED
DECLARATION OF TRUST AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE SUBORDINATED INDENTURE AND THE AGREEMENT OF THE
TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL
BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
43
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Declaration of Trust or have caused this Amended and Restated
Declaration of Trust to be executed on their behalf, all as of the day and year
first above written.
EXELON CORPORATION,
as Sponsor
By: ________________________________
Name:
Title:
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION,
as Property Trustee and Delaware Trustee
By: ________________________________
Name:
Title:
_____________________________________
, as Administrative Trustee
_____________________________________
, as Administrative Trustee
_____________________________________
, as Administrative Trustee
44
EXHIBIT A
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED
IN THE AMENDED AND RESTATED DECLARATION OF TRUST REFERRED TO HEREIN
Certificate Number Number of Common Securities
C-1 _______
Certificate Evidencing Common Securities
of
Exelon Capital Trust __
___% Common Securities
(Liquidation amount $_____ per Common Security)
Exelon Capital Trust __, a statutory trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Exelon
Corporation, a Pennsylvania corporation (the "Holder"), is the registered owner
of ____________________ (_______) common securities of the Trust representing
undivided beneficial interests in the assets of the Trust and designated the
___% Common Securities (liquidation amount $_____ per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the Amended and
Restated Declaration of Trust (as defined below), the Common Securities are not
transferable, except by operation of law, and any, to the fullest extent
permitted by law, attempted transfer hereof shall be void. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of _________, 200_, as the same may be amended from time to
time (the "Amended and Restated Declaration of Trust"), including the
designation of the terms of the Common Securities as set forth therein.
Capitalized terms used herein but not defined shall have the meaning given to
them in the Amended and Restated Declaration of Trust. The Trust will furnish a
copy of the Amended and Restated Declaration of Trust and the Subordinated
Indenture to the Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Amended and Restated Declaration of Trust and is entitled to the benefits
thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
A-1
IN WITNESS WHEREOF, the Trust has executed this certificate
this __ day of ______, 200_.
EXELON CAPITAL TRUST __
By: _____________________________________
, as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Amended and Restated Declaration of Trust.
Dated: ________, 200_ WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION,
Not in its individual capacity but solely
as Property Trustee
By: ____________________________
Authorized Signatory
A-2
[FORM OF REVERSE OF SECURITY]
Each Common Security will be entitled to receive cumulative
Distributions at a rate of ___% per annum applied to the stated liquidation
amount of $_____ per Common Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one ___________ period will bear interest thereon
compounded _____________ at a rate of ___% per annum (to the extent permitted by
applicable law). Distributions shall be made and shall be deemed payable on each
Distribution Date only to the extent that the Trust has legally and immediately
available funds in the Payment Account for the payment of such Distributions.
The amount of Distributions payable for any full ___________ period will be
computed on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full month for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such month.
Distributions on the Common Securities will be cumulative,
will accrue from the Issue Date and, except in the event that the Sponsor
exercises its right to extend the interest payment period for the Debentures
pursuant to the Subordinated Indenture, will be payable _____________ in arrears
on ____________ and ____________ of each year, commencing on ____________, 2003.
Distributions, including Additional Amounts (as defined below), if any, on the
Common Securities on each Distribution Date will be payable to the Holders
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record dates. The relevant record dates for the Common Securities
shall be the same record date as for the Preferred Securities, which shall be
one Business Day prior to the relevant payment dates which payment dates
correspond to the interest payment dates on the Debentures. If the interest
payment period for the Debentures is extended by the Sponsor pursuant to the
Subordinated Indenture (an "Extension Period"), no interest will be due and
payable on the Debentures. Before the termination of any such Extension Period,
the Sponsor may further defer payments of interest on the Debentures by further
extending such Extension Period, provided, that such Extension Period, together
with all such further extensions of such Extension Period, may not exceed __
consecutive ___________ periods or extend beyond the maturity date of the
Debentures. As a consequence of an Extension Period, Distributions will also be
deferred, provided that ___________ Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at a rate of ___%
per annum, compounded _____________ ("Additional Amounts") during any such
Extension Period. The payment of such deferred interest, together with
Additional Amounts, will be distributed to the Holders of the Trust Securities
as received at the end of any Extension Period; provided, however, that the
Trust may distribute such amounts earlier if the Sponsor prepays interest
accrued on the Debentures prior to the end of any Extension Period as permitted
by the Subordinated Indenture.
If on any Distribution Date or Redemption Date an Indenture
Event of Default shall have occurred and be continuing, no payment of any
Distribution (including Additional Amounts, if applicable) on, or the applicable
Redemption Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the applicable Redemption Price the full amount of such
Redemption Price on all Outstanding Preferred Securities, shall have been made
or provided for, and all funds immediately available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions
(including Additional Amounts, if applicable) on, or the applicable Redemption
Price of, Preferred Securities then due and payable.
Subject to certain conditions set forth in the Amended and
Restated Declaration of Trust and the Subordinated Indenture, the Property
Trustee may, at the direction of the Sponsor, at any time dissolve the Trust and
A-3
cause, after the satisfaction of liabilities to creditors of the Trust, the
Debentures to be distributed to the holders of the Trust Securities in
liquidation of the Trust or, simultaneously with any redemption of the
Debentures, cause a Like Amount of the Trust Securities to be redeemed by the
Trust.
The Common Securities shall be redeemable as provided in the
Amended and Restated Declaration of Trust.
A-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
to:
__________________________________________________________________________
__________________________________________________________________________
(Insert assignee's social security or tax identification number)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
__________________________________________________________________________
__________________________________________________________________________
agent to transfer this Common Securities Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
A-5
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this
"Agreement") is made as of __________, 200_, between Exelon Corporation, a
Pennsylvania corporation (the "Company"), and Exelon Capital Trust __, a
Delaware statutory trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from the Company, and to issue
and sell to the public its ___% Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Declaration of Trust of the Trust
dated as of _________, 200_, as the same may be amended from time to time (the
"Amended and Restated Declaration of Trust"); and
WHEREAS, the Company is the guarantor of the Preferred
Securities.
NOW, THEREFORE, in consideration of the purchase by each
holder of the Preferred Securities, which purchase the Company hereby agrees
shall benefit the Company and which purchase the Company acknowledges will be
made in reliance upon the execution and delivery of this Agreement, the Company
and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms
and conditions hereof, the Company hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Trust is now or hereafter
becomes indebted or liable (the "Beneficiaries") the full payment, when and as
due, of any and all Obligations (as hereinafter defined) to such Beneficiaries.
As used herein, "Obligations" means any indebtedness, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to holders of any
Preferred Securities or other similar interests in the Trust the amounts due
such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall
terminate and be of no further force and effect upon the date on which there are
no Beneficiaries remaining; provided, however, that this Agreement shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any holder of Preferred Securities or any Beneficiary must restore payment
of any sums paid under the Preferred Securities, under any Obligation, under the
Preferred Securities Guarantee Agreement dated the date hereof between the
Company and Wachovia Trust Company, National Association, as guarantee trustee,
or under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives
notice of acceptance of this Agreement and of any Obligation to which it applies
or may apply, and the Company hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
B-1
(a) the extension of time for the payment by the
Trust of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection with,
the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Beneficiaries with
respect to the Obligations or any action on the part of the Trust
granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give
notice to, or obtain the consent of, the Company with respect to the happening
of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against the Company and the Company waives any right or
remedy to require that any action be brought against the Trust or any other
person or entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall be given in
writing by delivering the same against receipt therefor by facsimile
transmission (confirmed by mail), telex or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answer-back, if sent by telex):
If to the Company:
Exelon Corporation
10 South Dearborn Street - 37th Floor
P.O. Box 805379
Chicago, Illinois 60680
Attention: Treasurer
If to the Trust:
Exelon Capital Trust __
c/o Exelon Corporation
P.O. Box 805379
Chicago, Illinois 60680
Attention: Treasurer
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Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA.
THIS AGREEMENT is executed as of the date and year first above
written.
EXELON CORPORATION
By: ________________________________
Name:
Title:
EXELON CAPITAL TRUST __
By: ____________________________________
, as Administrative Trustee
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EXHIBIT C
This Preferred Security is a Book-Entry Preferred Securities
Certificate within the meaning of the Amended and Restated Declaration of Trust
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depository") or a nominee of the Depository. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depository or its nominee only in the limited
circumstances described in the Amended and Restated Declaration of Trust and no
transfer of this Preferred Security (other than a transfer of this Preferred
Security as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or in such other name as is requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
P-1 _______
CUSIP NO. _______________
Certificate Evidencing Preferred Securities
of
Exelon Capital Trust __
___% Trust Preferred Securities
(Liquidation amount $_____ per Preferred Security)
Exelon Capital Trust __, a statutory trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Cede & Co.
(the "Holder") is the registered owner of One Hundred Thousand (_______)
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust and designated the Exelon Capital Trust __ ___% Trust
Preferred Securities (liquidation amount $_____ per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Amended and Restated Declaration of Trust (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Declaration of Trust of the Trust, dated as of _______, 200_, as the
same may be amended from time to time (the "Amended and Restated Declaration of
Trust"), including the designation of the terms of Preferred Securities as set
forth therein. Capitalized terms used herein but not defined shall have the
meaning given them in the Amended and Restated Declaration of Trust. The holder
of this certificate is entitled to the benefits of the Guarantee to the extent
provided therein. The Trust will furnish a copy of the Amended and Restated
Declaration of Trust, the Guarantee and the Subordinated Indenture to the holder
of this certificate without charge upon written request to the Trust at its
principal place of business.
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Upon receipt of this certificate, the holder of this
certificate is bound by the Amended and Restated Declaration of Trust and is
entitled to the benefits thereunder.
By acceptance, the holder of this certificate agrees to treat,
for United States federal income tax purposes, the Debentures as indebtedness
and the Preferred Securities as evidence of indirect beneficial ownership in the
Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this __ day of __________, 200_.
EXELON CAPITAL TRUST __
By: ____________________________________
, as Administrative Trustee
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CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Amended and Restated Declaration of Trust.
Dated: ________, 200_ WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION,
Not in its individual capacity but solely
as Property Trustee
By: ___________________________
Name:
Title:
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[FORM OF REVERSE OF SECURITY]
Each Preferred Security will be entitled to receive cumulative
Distributions at a rate of ___% per annum applied to the stated liquidation
amount of $_____ per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one ___________ period will bear interest thereon
compounded _____________ at a rate of ___% per annum (to the extent permitted by
applicable law). Distributions shall be made and shall be deemed payable on each
Distribution Date only to the extent that the Trust has legally and immediately
available funds in the Payment Account for the payment of such Distributions.
The amount of Distributions payable for any full ___________ period will be
computed on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full month for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such month.
Distributions on the Preferred Securities will be cumulative,
will accrue from the Issue Date and, except in the event that the Sponsor
exercises its right to extend the interest payment period for the Debentures
pursuant to the Subordinated Indenture, will be payable _____________ in arrears
on ____________ and ____________ of each year, commencing on ____________, 2003.
Distributions, including Additional Amounts (as defined below), if any, on the
Preferred Securities on each Distribution Date will be payable to the Holders
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record dates, which shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest payment dates on
the Debentures. If the interest payment period for the Debentures is extended by
the Sponsor pursuant to the Subordinated Indenture (an "Extension Period"), no
interest will be due and payable on the Debentures. Before the termination of
any such Extension Period, the Sponsor may further defer payments of interest on
the Debentures by further extending such Extension Period, provided, that such
Extension Period, together with all such further extensions of such Extension
Period, may not exceed _______ consecutive ___________ periods or extend beyond
the maturity date of the Debentures. As a consequence of an Extension Period,
Distributions will also be deferred, provided that ___________ Distributions
will continue to accrue with interest thereon (to the extent permitted by
applicable law) at a rate of ___% per annum, compounded _____________
("Additional Amounts") during any such Extension Period. The payment of such
deferred interest, together with Additional Amounts, will be distributed to the
Holders of the Trust Securities as received at the end of any Extension Period;
provided, however, that the Trust may distribute such amounts earlier if the
Sponsor prepays interest accrued on the Debentures prior to the end of any
Extension Period as permitted by the Subordinated Indenture.
Subject to certain conditions set forth in the Amended and
Restated Declaration of Trust and the Subordinated Indenture, the Property
Trustee may, at the direction of the Sponsor, at any time dissolve the Trust
and, after the satisfaction of the liabilities to creditors of the Trust, cause
the Debentures to be distributed to the holders of the Trust Securities in
liquidation of the Trust or, simultaneously with any redemption of the
Debentures, cause a Like Amount of the Trust Securities to be redeemed by the
Trust.
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The Preferred Securities shall be redeemable as provided in
the Amended and Restated Declaration of Trust.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
__________________________________________________________________________
__________________________________________________________________________
(Insert assignee's social security or tax identification number)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
__________________________________________________________________________
__________________________________________________________________________
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
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