Exhibit 4.16
________________________________________________________________________
FORM OF
AMENDED AND RESTATED DECLARATION
OF TRUST
[OHIO CASUALTY Capital Trust]
Dated as of [DATE]
________________________________________________________________________
TABLE OF CONTENTS
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Page
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ARTICLE 1 INTERPRETATION AND DEFINITIONS SECTION
SECTION 1.01. Definitions. Unless the context otherwise requires:..........................1
ARTICLE 2 TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application..............................................7
SECTION 2.02. Lists of Holders of Securities................................................7
SECTION 2.03. Reports by the Property Trustee...............................................8
SECTION 2.04. Periodic Reports to Property Trustee..........................................8
SECTION 2.05. Evidence of Compliance with Conditions Precedent..............................8
SECTION 2.06. Events of Default; Waiver.....................................................8
SECTION 2.07. Event of Default; Notice.....................................................10
ARTICLE 3 ORGANIZATION
SECTION 3.01. Name.........................................................................10
SECTION 3.02. Office.......................................................................11
SECTION 3.03. Purpose......................................................................11
SECTION 3.04. Authority....................................................................11
SECTION 3.05. Title to Property of the Trust...............................................11
SECTION 3.06. Powers and Duties of the Regular Trustees....................................11
SECTION 3.07. Prohibition of Actions by the Trust and the Trustees.........................14
SECTION 3.08. Powers and Duties of the Property Trustee....................................15
SECTION 3.09. Certain Duties and Responsibilities of the Property Trustee..................17
SECTION 3.10. Certain Rights of Property Trustee...........................................18
SECTION 3.11. Delaware Trustee.............................................................21
SECTION 3.12. Execution of Documents.......................................................21
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.......................21
SECTION 3.14. Duration of Trust............................................................21
SECTION 3.15. Mergers......................................................................22
ARTICLE 4 SPONSOR
SECTION 4.01. Sponsor's Purchase of Common Securities......................................23
SECTION 4.02. Responsibilities of the Sponsor..............................................23
ARTICLE 5 TRUSTEES
SECTION 5.01. Number of Trustees...........................................................24
SECTION 5.02. Delaware Trustee.............................................................24
SECTION 5.03. Property Trustee; Eligibility................................................24
SECTION 5.04. Qualifications of Regular Trustees and Delaware Trustee Generally............25
SECTION 5.05. Initial Trustees.............................................................25
SECTION 5.06. Appointment, Removal and Resignation of Trustees.............................26
SECTION 5.07. Vacancies among Trustees.....................................................27
SECTION 5.08. Effect of Vacancies..........................................................28
SECTION 5.09. Meetings.....................................................................28
SECTION 5.10. Delegation of Power..........................................................28
ARTICLE 6 DISTRIBUTIONS
SECTION 6.01. Distributions................................................................29
ARTICLE 7 ISSUANCE OF SECURITIES
SECTION 7.01. General Provisions Regarding Securities......................................29
SECTION 7.02. Execution and Authentication.................................................30
SECTION 7.03. [Reserved]...................................................................30
SECTION 7.04. Registrar, Paying Agent and Conversion Agent.................................30
SECTION 7.05. Paying Agent to Hold Money in Trust..........................................31
SECTION 7.06. [Reserved]...................................................................31
SECTION 7.07. [Reserved]...................................................................31
SECTION 7.08. Outstanding Preferred Securities.............................................31
SECTION 7.09. Preferred Securities in Treasury.............................................31
SECTION 7.10. [Reserved]...................................................................32
SECTION 7.11. Cancellation.................................................................32
ARTICLE 8 TERMINATION OF TRUST
SECTION 8.01. Termination of Trust.........................................................32
ARTICLE 9 TRANSFER AND EXCHANGE
SECTION 9.01. General......................................................................33
SECTION 9.02. Transfer of Certificates.....................................................34
SECTION 9.03. Deemed Security Holders......................................................34
SECTION 9.04. Book Entry Interests.........................................................35
SECTION 9.05. Notices to Clearing Agency...................................................35
SECTION 9.06. Appointment of Successor Clearing Agency.....................................36
SECTION 9.07. Definitive Preferred Security Certificates...................................36
SECTION 9.08. Mutilated, Destroyed, Lost or Stolen Certificates............................36
ARTICLE 10 LIMITATION OF LIABILITY OF HOLDERS OF
SECURITIES, TRUSTEES OR OTHERS
SECTION 10.01. Liability....................................................................37
SECTION 10.02. Exculpation..................................................................37
SECTION 10.03. Fiduciary Duty...............................................................38
SECTION 10.04. Indemnification..............................................................39
SECTION 10.05. Outside Businesses...........................................................39
ARTICLE 11 ACCOUNTING
SECTION 11.01. Fiscal Year..................................................................40
SECTION 11.02. Certain Accounting Matters...................................................40
SECTION 11.03. Banking......................................................................41
SECTION 11.04. Withholding..................................................................41
ARTICLE 12 AMENDMENTS AND MEETINGS
SECTION 12.01. Amendments...................................................................41
SECTION 12.02. Meetings of the Holders of Securities; Action by Written Consent.............43
ARTICLE 13 REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.01. Representations and Warranties of Property Trustee...........................45
SECTION 13.02. Representations and Warranties of Delaware Trustee...........................45
ARTICLE 14 [RESERVED]
SECTION 14.01. [Reserved]...................................................................46
ARTICLE 15 MISCELLANEOUS
SECTION 15.01. Notices......................................................................46
SECTION 15.02. Governing Law................................................................47
SECTION 15.03. Intention of the Parties.....................................................47
SECTION 15.04. Headings.....................................................................47
SECTION 15.05. Successors and Assigns.......................................................47
SECTION 15.06. Partial Enforceability.......................................................48
SECTION 15.07. Counterparts.................................................................48
CROSS-REFERENCE TABLE(1)
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Section of
Trust Indenture Act, Section of
amended Declaration
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310 ............................................................2.01(c)
310(a)..........................................................Inapplicable
310(b)..........................................................5.03(c), 5.03(d)
311(a)..........................................................2.02(b)
311(b)..........................................................2.02(b)
311(c)..........................................................Inapplicable
312(a)..........................................................Inapplicable
312(b)..........................................................2.02(b)
313.............................................................2.03
314.............................................................2.04
314(a)..........................................................3.06(j)
314(b)..........................................................Inapplicable
314(c)..........................................................2.05
314(d)..........................................................Inapplicable
314(f)..........................................................Inapplicable
315(a)..........................................................Inapplicable
315(c)..........................................................Inapplicable
315(d)..........................................................Inapplicable
316(a)..........................................................Inapplicable
316(c)..........................................................3.06(e)
317.............................................................2.01(c)
317(b)..........................................................3.08(h)
_____________________
(1) This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
AMENDED AND RESTATED
DECLARATION OF TRUST
OF [OHIO CASUALTY CAPITAL TRUST]
[Date]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of [Date], by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), Ohio Casualty
Corporation, an Ohio corporation, as trust sponsor (the "Sponsor"), and by the
holders, from time to time, of undivided beneficial interests in the Trust
issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established a trust (the
"Trust") under the Delaware Statutory Trust Act pursuant to a Declaration of
Trust dated as of April 30, 2003, (the "Original Declaration") and a
Certificate of Trust filed with the Secretary of State of Delaware on April
30, 2003, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and
investing the proceeds thereof in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a statutory trust under the Statutory Trust Act and that
this Declaration constitute the governing instrument of such statutory trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE 1
INTERPRETATION AND DEFINITIONS SECTION
SECTION 1.01. Definitions. Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.01;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Agent" means any Registrar, Paying Agent, Conversion Agent or co-
registrar.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary as described in Section 9.04
"Business Day" means any day other than a day on which banking
institutions in New York, New York and in London, England are authorized or
required by law to close.
"Certificate" means a certificate in global or definitive form
representing a Common Security or a Preferred Security.
"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.
"Closing Date" means [Date].
"Code" means the Internal Revenue Code of 1986 as amended.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in Section 7.01(a).
"Common Securities Guarantee" means the guarantee agreement to be
dated as of [Date], of the Sponsor in respect of the Common Securities.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii)
the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means the Sponsor in its capacity as issuer of the
Debentures.
"Debenture Trustee" means [Debenture Trustee], a [___________]
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture to be held by the Property Trustee, a
specimen certificate for such series of Debentures being Exhibit B.
"Definitive Preferred Securities" means the Preferred Securities in
definitive form issued by the Trust.
"Definitive Preferred Security Certificate" has the meaning set forth
in Section 9.04.
"Delaware Trustee" has the meaning set forth in Section 5.02.
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.01.
"Depositary" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Certificate" has the meaning set forth in Section 9.04.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the
meaning of the Statutory Trust Act.
"Indemnified Person" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"Indenture" means the Indenture dated as of [Date], between the
Debenture Issuer and [Debenture Trustee], as trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the U.S. Investment Company Act of
1940, as amended.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of a nationally recognized independent counsel experienced
in practice under the Investment Company Act to the effect that, as a result
of the occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), there is a more than an insubstantial risk that the Trust is or will be
considered an Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective on or
after the date of the issuance of the Preferred Securities.
"Legal Action" has the meaning set forth in Section 3.06(g).
"Majority in liquidation preference of the Securities" means, except
as provided in the terms of the Preferred Securities and by the Trust
Indenture Act, Holders of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
preference (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read
the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"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 or securities deposited with the
Clearing Agency.
"Paying Agent" has the meaning specified in Section 3.08(h).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"Preferred Securities Guarantee" means the guarantee agreement to be
dated as of [Date], of the Sponsor in respect of the Preferred Securities.
"Preferred Securities" has the meaning specified in Section 7.01(a).
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Participant
or as an indirect participant, in each case in accordance with the rules of
such Depositary).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.03.
"Property Trustee Account" has the meaning set forth in Section
3.08(c).
"Prospectus Supplement", as used in Annex I hereto, means the
prospectus supplement, dated as of [Date], relating to the issuance and sale
by the Trust of Preferred Securities.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Register" has the meaning set forth in Section 7.04.
"Regular Trustee" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee,
any vice-president, any assistant vice-president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer or any other officer
in the Corporate Trust Department of the Property Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the Global
Preferred Security and any other Preferred Security in global form.
"66-2/3% in liquidation preference of the Securities" means, except
as provided in the terms of the Preferred Securities and by the Trust
Indenture Act, Holders of outstanding Securities voting together as a single
class or, as the context may require, Holders of Preferred Securities or
Holders of outstanding Common Securities voting separately as a class,
representing at least 66-2/3% of the aggregate liquidation preference
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions, to the date upon which the
voting percentages are determined) of all outstanding Securities of the
relevant class.
"Sponsor" means Ohio Casualty Corporation, an Ohio corporation, or
any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
"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.
"Successor Delaware Trustee" has the meaning set forth in Section
5.06(c).
"Successor Property Trustee" has the meaning set forth in Section
5.06(b).
"Super Majority" has the meaning set forth in Section 2.06(a)(ii).
"Tax Event" means the Regular Trustees shall have received an opinion
of nationally recognized independent tax counsel experienced in such matters
to the effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority thereof
or therein or (b) any amendment to or change in an interpretation or
application of such laws or regulations, there is more than an insubstantial
risk that (i) the Trust would be subject to United States federal income tax
with respect to income accrued or received on the Subordinated Debt
Securities, (ii) interest payable to the Trust on the Subordinated Debt
Securities would not be deductible by the Debenture Issuer for United States
federal income tax purposes or (iii) the Trust would be subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
"10% in liquidation preference of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture
Act, Holders of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities, voting separately as a class,
representing 10% of the aggregate liquidation preference (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees
shall refer to such Person or Persons solely in their capacity as trustees
hereunder.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration, which are
incorporated by reference in and made part of this Indenture 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 and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.02. Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee (i) within 15 days after each record
date for payment of Distributions, a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders of
the Securities ("List of Holders") as of such record date, provided that
neither the Sponsor nor the Regular Trustees on behalf of the Trust shall be
obligated to provide such List of Holders at any time the List of Holders does
not differ from the most recent List of Holders given to the Property Trustee
by the Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at
any other time, within 30 days of receipt by the Trust of a written request
for a List of Holders as of a date no more than 15 days before such List of
Holders is given to the Property Trustee. The Property Trustee shall preserve,
in as current a form as is reasonably practicable, all information contained
in Lists of Holders given to it or which it receives in the capacity as Paying
Agent (if acting in such capacity) provided that the Property Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Preferred Securities such reports, if any, as
are required by Section 313 of the Trust Indenture Act in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.04. Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
(if any) as required by Section 314 of the Trust Indenture Act and the
compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.05. Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver.
(a) The Holders of a Majority in liquidation preference of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount the holders of the Debentures (a "Super Majority")
to be waived under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least
the proportion in liquidation preference of the Preferred Securities
that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.
Upon such waiver, any such default shall cease to exist, and any
Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Declaration, but
no such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities of
an Event of Default with respect to the Preferred Securities shall also be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Event of Default with respect to the Common Securities for all purposes
of this Declaration without any further act, vote, or consent of the Holders
of the Common Securities.
(b) The Holders of a Majority in liquidation preference of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Declaration as provided below in this Section
2.06(b), the Event of Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration as
provided below in this Section 2.06(b), the Event of Default under
the Declaration may only be waived by the vote of the Holders of at
least the proportion in liquidation preference of the Preferred
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely
on behalf of the Holders of the Preferred Securities and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Securities. Subject to the foregoing
provisions of this Section 2.06(b), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the Common Securities
arising therefrom shall be deemed to have been cured for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or other
default or Event of Default with respect to the Common Securities or impair
any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration.
SECTION 2.07. Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults with respect to the
Securities known to the Property Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.07(a) being hereby defined to be an Event of Default as defined in
the Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures or in the payment of any sinking fund
installment established for the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 5.1(1) and 5.1(2) of the Indenture,
provided that the Property Trustee is also the Paying Agent under the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer charged
with the administration of the Declaration shall have actual
knowledge.
ARTICLE 3
ORGANIZATION
SECTION 3.01. Name.
The Trust is named "[Ohio Casualty Capital Trust]," as such name may
be modified from time to time by the Regular Trustees following written notice
to the Holders of Securities. The Trust's activities may be conducted under
the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.02. Office.
The address of the principal office of the Trust is c/o Ohio Casualty
Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. On ten Business Days
written notice to the Holders of Securities, the Regular Trustees may
designate another principal office.
SECTION 3.03. Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only
those other activities necessary, or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.04. Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the
Trustees to bind the Trust. Persons dealing with the Trust are entitled to
rely conclusively on the power and authority of the Trustees as set forth in
this Declaration.
SECTION 3.05. Title to Property of the Trust.
Except as provided in Section 3.08 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this Declaration,
legal title to all assets of the Trust shall be vested in the Trust. The
Holders shall not have legal title to any part of the assets of the Trust, but
shall have an undivided beneficial interest in the assets of the Trust.
SECTION 3.06. Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one
series of Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no interests in the
Trust other than the Securities, and the issuance of Securities shall be
limited to a one-time, simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement filed on Form S-3
prepared by the Sponsor, including any amendments thereto in relation
to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Preferred Securities in any
State or foreign jurisdiction in which the Sponsor has determined to
qualify or register such Preferred Securities for sale;
(iii) execute and file an application, prepared by or on behalf
of the Sponsor, at such time as determined by the Sponsor, to the New
York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing or quotation of the Preferred
Securities;
(iv) to execute and deliver letters, documents, or instruments
with The Depository Trust Company relating the Preferred Securities;
(v) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form 8-A,
including any amendments thereto, prepared by the Sponsor relating to
the registration of the Preferred Securities under Section 12(b) of
the Exchange Act; and
(vi) execute and enter into the purchase agreement, registration
rights agreement and other related agreements providing for the sale
of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Securities; provided, however, that the Regular Trustees shall cause legal
title to the Debentures to be held of record in the name of the Property
Trustee for the benefit of the Holders of the Preferred Securities and the
Holders or Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Tax Event or Investment Company Event; provided
that the Regular Trustees shall consult with the Sponsor and the Property
Trustee before taking or refraining from taking any Ministerial Action in
relation to a Tax Event or Investment Company Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.08(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Debenture Issuer of its election (i) to defer
payments of interest on the Debentures by extending the interest payment
period under the Indenture or (ii) to extend the scheduled maturity date on
the Debentures;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action 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 Preferred Securities or
to enable the Trust to effect the purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their discretion
to be necessary or desirable in carrying out the activities of the Trust as
set out in this Section 3.06, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes,
provided that such action does not adversely affect the interests of Holders;
and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.06 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.03, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.03.
Subject to this Section 3.06, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.08.
SECTION 3.07. Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall not, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) (A) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration
that the principal of all the Debentures shall be due and payable, or
(D) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required
unless the Trust shall have received an opinion of counsel to the
effect that such modification will not cause more than an
insubstantial risk that for United States Federal income tax purposes
the Trust will not be classified as a grantor trust or partnership.
SECTION 3.08. Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 5.06.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and
under the exclusive control of the Property Trustee on behalf of the
Holders of the Securities and, upon the receipt of payments of funds
made in respect of the Debentures held by the Property Trustee,
deposit such funds into the Property Trustee Account and make
payments to the Holders of the Preferred Securities and Holders of
the Common Securities from the Property Trustee Account in accordance
with Section 6.01. Funds in the Property Trustee Account shall be
held uninvested until disbursed in accordance with this Declaration;
(ii) engage in such ministerial activities as so directed in
writing by the Regular Trustees and as shall be necessary or
appropriate to effect the redemption of the Preferred Securities and
the Common Securities to the extent the Debentures are redeemed or
mature; and
(iii) upon notice of distribution issued by the Regular Trustees
in accordance with the terms of the Securities, engage in such
ministerial activities as so directed in writing by the Regular
Trustees as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the
occurrence of certain special events (as may be defined in the terms
of the Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms
of the Securities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities.
(e) The Property Trustee shall take any Legal Action which arises out
of or in connection with an Event of Default or the Property Trustee's duties
and obligations under this Declaration or the Trust Indenture Act.
(f) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of
the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.06.
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its
rights as holder of the Debentures subject to the rights of the Holders
pursuant to the terms of such Securities.
(h) The Property Trustee will act as Paying Agent and Registrar in
New York (the "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any
time by the Property Trustee.
(i) Subject to this Section 3.08, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.06. The Property Trustee must exercise the
powers set forth in this Section 3.08 in a manner that is consistent with the
purposes and functions of the Trust set out in Section 3.03, and the Property
Trustee shall not take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.03.
SECTION 3.09. Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), the Property Trustee
shall exercise such of the rights and powers vested in it by this Declaration,
and use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Property Trustee and conforming to the requirements of
this Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically required
to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Declaration (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein, unless specifically
required by this Declaration);
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation preference of the Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Declaration
or adequate indemnity against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar property
for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of
the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Sponsor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property
Trustee Account maintained by the Property Trustee pursuant to
Section 3.08(c)(i) and except to the extent otherwise required by
law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the
Property Trustee be liable for the default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10. Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.09:
(i) the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by
an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Regular Trustees;
(iv) 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 registration
thereof;
(v) the Property Trustee may consult with counsel of its
selection or other experts and the advice or opinion of such counsel
and experts with respect to legal matters or advice within the scope
of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any
of its Affiliates, and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have provided to the Property Trustee adequate security and
indemnity, reasonably satisfactory to the Property Trustee, against
the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Property Trustee provided, that, nothing contained
in this Section 3.10(a)(iv) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, security, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and, if
the Property Trustee shall determine to make such further inquiry or
investigation, it shall be entitled, at a time and place reasonably
determined by the Regular Trustees, to examine the books and records
of the Trust, personally or by agent or attorney, and shall incur no
additional liability by reason of such inquiry or investigation;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third
party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation preference of the
Securities as would be entitled to direct the Property Trustee under
the terms of the Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and
(iii) shall be protected in acting in accordance with such
instructions;
(xi) except as otherwise expressly provided by this Declaration,
the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this
Declaration;
(xii) the rights, privileges, protections, immunities and
benefits given to the Property Trustee, including, without
limitation, its right to indemnification, are extended to, and shall
be enforceable by, the Property Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act
hereunder; and
(xiii) the Property Trustee may request that the Sponsor deliver
an Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take specified
actions pursuant to this Declaration, which Officers' Certificate may
be signed by any person authorized to sign an Officers' Certificate,
including any person specified as so authorized in any such
certificate previously delivered and not superseded.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in
any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11. Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.02, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described in
this Declaration. Except as set forth in Section 5.02, the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Statutory Trust Act.
SECTION 3.12. Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Statutory Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents that the Regular
Trustees have the power and authority to execute pursuant to Section 3.06;
provided that, the registration statement referred to in Section 3.06(b)(i)),
including any amendments thereto, shall be signed by a majority of the Regular
Trustees.
SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14. Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article 8
hereof, shall exist until 55 years from the date of its formation.
SECTION 3.15. Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other entity or person,
except as described in Section 3.15(b) and 3.15(c).
(b) The Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the Holders of the Securities, the
Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with
or into, or be replaced by a trust organized as such under the laws of any
State or the District of Columbia; provided that:
(i) if the Trust is not the surviving entity, the successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Preferred Securities (the
"Successor Securities") as long as the Successor Securities
rank, with respect to participation in the profits and
distributions or in the assets of the Successor Entity at least
as high as the Preferred Securities rank with respect to
participation in the profits and dividends or in the assets of
the Trust;
(ii) the Debenture Issuer expressly acknowledges such Successor
Entity as the Holder of 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 with any other
organization on which the Preferred Securities are then listed or
quoted;
(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 powers, preferences and other special rights
of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially identical
to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel (reasonably acceptable to the Property
Trustee) to the Trust experienced in such matters to the effect that:
(A) the Successor Entity will be treated as a grantor trust
for United States Federal income tax purposes;
(B) following such merger, consolidation, amalgamation or
replacement, neither the Sponsor nor the Successor Entity will
be required to register as an Investment Company; and
(C) such merger, consolidation, amalgamation or replacement
will not adversely affect the limited liability of the Holders
of the Securities (including any Successor Securities); and
(viii) the Sponsor provides a guarantee to the Holders of the
Successor Securities with respect to the Successor Entity having
substantially the same terms as the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation preference of the Common
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 Successor Entity to be classified as
other than a grantor trust for United States Federal income tax purposes.
ARTICLE 4
SPONSOR
SECTION 4.01. Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all the Common
Securities issued by the Trust, in an aggregate liquidation preference equal
to 3% of the total capital of the Trust, at the same time as the Preferred
Securities are sold.
SECTION 4.02. Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission the
registration statement on Form S-3, including any amendments thereto;
(b) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing or quotation of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
(e) to negotiate the terms of the purchase agreement, registration
rights agreement and other related agreements providing for the sale of the
Preferred Securities.
ARTICLE 5
TRUSTEES
SECTION 5.01. Number of Trustees.
The number of Trustees shall initially be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in liquidation
preference of the Common Securities voting as a class at a meeting of the
Holders of the Common Securities; provided that, if the Property Trustee does
not also act as Delaware Trustee, the number of Trustees shall be at least
five (5).
SECTION 5.02. Delaware Trustee.
If required by the Statutory Trust Act, one Trustee (the "Delaware
Trustee") shall be an entity which has its principal place of business in the
State of Delaware, and otherwise meets the requirements of applicable law;
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 5.03. Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements
of the supervising or examining authority referred to above, then for
the purposes of this Section 5.03(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 5.03(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.06(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 5.04. Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.05. Initial Trustees.
The initial Regular Trustees shall be:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o Ohio Casualty Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o Ohio Casualty Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇
c/o Ohio Casualty Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Administration & Compliance
The initial Property Trustee shall be:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
Attention: Corporate Administration
SECTION 5.06. Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.06(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Securities by vote of the Holders
of a Majority in liquidation preference of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 5.06(a) until a successor Property Trustee (the
"Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Regular Trustees and the Sponsor; and
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with this Section 5.06(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.02 and 5.04 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect
upon such delivery or upon such later date as is specified therein; provided,
however, that:
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders
of the Securities;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware
Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered
to the Trust, the Sponsor and the resigning Delaware Trustee; and
(iii) no such resignation of a Special Regular Trustee shall be
effective until the 60th day following delivery of the instrument of
resignation of the Special Regular Trustee to the Sponsor and the
Trust or such later date specified in such instrument during which
period the Holders of the Preferred Securities shall have the right
to appoint a successor Special Regular Trustee as provided in this
Section 5.06; and
(e) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.06.
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.06 within 60 days after delivery to the Sponsor and the Trust of an
instrument of resignation, the resigning Property Trustee or Delaware Trustee,
as applicable, may, at the Sponsor's expense, petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
SECTION 5.07. Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.01, or if the number of Trustees
is increased pursuant to Section 5.01, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy
shall be filled with a Trustee appointed in accordance with Section 5.06.
SECTION 5.08. Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee
shall not operate to annul the Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled by the appointment
of a Regular Trustee in accordance with Section 5.06, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
SECTION 5.09. Meetings.
Meetings of the Regular Trustees shall be held from time to time upon
the call of any Regular Trustee. Regular meetings of the Regular Trustees may
be held at a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meetings of the Regular Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meetings of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing (including
by facsimile, with a hard copy by overnight courier) not less than 24 hours
before a meeting. Notices shall contain a brief statement of the time, place
and anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for
the express purpose of objecting to the transaction of any activity on the
ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Declaration, any action of the Regular Trustees may
be taken at a meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with respect to such
matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Regular Trustees.
SECTION 5.10. Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.06, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust
or the names of the Regular Trustees or otherwise as the Regular Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
ARTICLE 6
DISTRIBUTIONS
SECTION 6.01. Distributions.
Holders shall receive Distributions (as defined herein) in accordance
with the applicable terms of the relevant Holder's Securities. Distributions
shall be made on the Preferred Securities and the Common Securities in
accordance with the preferences set forth in their respective terms. If and to
the extent that the Debenture Issuer makes a payment of interest (including
Compounded Interest (as defined in the Indenture) and Additional Interest (as
defined in the Indenture)) premium and principal on the Debentures held by the
Property Trustee (the amount of any such payment being a "Payment Amount"),
the Property Trustee shall and is directed, to the extent funds are available
for that purpose, to make a distribution (a "Distribution") of the Payment
Amount to Holders.
ARTICLE 7
ISSUANCE OF SECURITIES
SECTION 7.01. General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one class
of preferred securities, representing undivided beneficial interests in the
assets of the Trust (the "Preferred Securities"), having such terms (the
"Terms") as are set forth in Annex I and one class of common securities,
representing undivided beneficial interests in the assets of the Trust (the
"Common Securities"), having such terms as are set forth in Annex I. The Trust
shall have no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities. The Trust shall issue
no Securities in bearer form.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non- assessable, subject to Section 10.01 with respect to the Common
Securities.
(d) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and
shall be bound by, this Declaration.
SECTION 7.02. Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by one
Regular Trustee. In case any Regular Trustee of the Trust who shall have
signed any of the Securities shall cease to be such Regular Trustee before the
Securities so signed shall be delivered by the Trust, such Securities
nevertheless may be delivered as though the person who signed such Securities
had not ceased to be such Regular Trustee; and any Securities may be signed on
behalf of the Trust by such persons who, at the actual date of execution of
such Security, shall be the Regular Trustees of the Trust, although at the
date of the execution and delivery of the Declaration any such person was not
such a Regular Trustee.
(b) One Regular Trustee shall sign the Preferred Securities for the
Trust by manual or facsimile signature. Unless otherwise determined by the
Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized officer of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Preferred Securities for original
issue in accordance with paragraph 5 of the Securities. The aggregate number
of Preferred Securities outstanding at any time shall not exceed the number
set forth in the Terms in Annex A hereto except as provided in Section 7.07.
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so.
Each reference in this Declaration to authentication by the Property Trustee
includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Sponsor or an Affiliate.
SECTION 7.03. [Reserved].
SECTION 7.04. Registrar, Paying Agent and Conversion Agent.
In the event that the Preferred Securities are not in book-entry only
form, the Trust shall maintain in the Borough of Manhattan, The City of New
York, State of New York, (i) an office or agency where Preferred Securities
may be presented for registration of transfer or exchange ("Registrar"), (ii)
an office or agency where Preferred Securities may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Preferred
Securities and of their transfer and exchange. The Trust may appoint the
Registrar, the Paying Agent and the Conversion Agent and may appoint one or
more co-registrars, one or more additional paying agents and one or more
additional conversion agents in such other locations as it shall determine.
The term "Paying Agent" includes any additional paying agent. The Trust may
change any Paying Agent, Registrar or co-registrar without prior notice to any
Holder. The Trust shall notify the Property Trustee of the name and address of
any Agent not a party to this Declaration. If the Trust fails to appoint or
maintain another entity as Registrar or Paying Agent, the Property Trustee
shall act as such. The Trust or any of its Affiliates may act as Paying Agent
or Registrar. The Trust shall act as Paying Agent, Registrar or co-registrar
for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar and
Paying Agent for the Preferred Securities.
SECTION 7.05. Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of principal or distribution on the Securities, and will
notify the Property Trustee if there are insufficient funds. While any such
insufficiency continues, the Property Trustee may require a Paying Agent to
pay all money held by it to the Property Trustee. The Trust at any time may
require a Paying Agent to pay all money held by it to the Property Trustee and
to account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the
Trust) shall have no further liability for the money. If the Trust or the
Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent.
SECTION 7.06. [Reserved].
SECTION 7.07. [Reserved].
SECTION 7.08. Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Preferred Security is replaced, paid or purchased pursuant to
Section 7.07, it ceases to be outstanding unless the Property Trustee receives
proof satisfactory to it that the replaced, paid or purchased Preferred
Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with the
terms of this Declaration, they cease to be outstanding and interest on them
ceases to accrue.
A Preferred Security does not cease to be outstanding because one of
the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.09. Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Preferred
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which a Responsible Officer of the Property Trustee knows are so owned shall
be so disregarded.
SECTION 7.10. [Reserved].
SECTION 7.11. Cancellation.
The Trust at any time may deliver Preferred Securities to the
Property Trustee for cancellation. The Registrar, Paying Agent and Conversion
Agent shall forward to the Property Trustee any Preferred Securities
surrendered to them for registration of transfer, redemption, conversion,
exchange or payment. The Property Trustee shall promptly cancel all Preferred
Securities, surrendered for registration of transfer, redemption, conversion,
exchange, payment, replacement or cancellation and shall dispose of cancelled
Preferred Securities in accordance with its customary procedures for the
disposition of cancelled securities in effect at the time of such
cancellation. The Trust may not issue new Preferred Securities to replace
Preferred Securities that it has paid or that have been delivered to the
Property Trustee for cancellation or that any holder has converted.
SECTION 7.12. CUSIP Numbers
The Trust in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so used by the Trust, the Property Trustee shall
use "CUSIP" numbers in notices as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
and that reliance may be placed only on the other identification numbers
printed on the Securities, and the subject of such notice shall not be
affected by any defect in or omission of such numbers. The Regular Trustees or
the Sponsor will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE 8
TERMINATION OF TRUST
SECTION 8.01. Termination of Trust.
(a) The Trust shall terminate upon the earliest to occur of the
following:
(i) the bankruptcy of the Holder of the Common Securities or the
Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common Securities or the
Sponsor; the filing of a certificate of cancellation with respect to
the Trust or the revocation of the charter of the Holder of the
Common Securities or the Sponsor and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(iv) all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid
to the Holders in accordance with the terms of the Securities;
(v) the occurrence and continuation of a Tax Event or Investment
Company Event pursuant to which the Trust shall have been dissolved
in accordance with the terms of the Securities and all of the
Debentures endorsed thereon shall have been distributed to the
Holders of Securities in exchange for all of the Securities; or
(vi) the expiration of the term of the Trust on 55 years from
the date of its formation.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.01(a)), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.09 and Article 10 shall survive the
termination of the Trust.
ARTICLE 9
TRANSFER AND EXCHANGE
SECTION 9.01. General.
(a) Where Preferred Securities are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal number of Preferred Securities represented by different certificates,
the Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Trust shall issue and the Property Trustee shall
authenticate Preferred Securities at the Registrar's request.
(b) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any
Security not made in accordance with this Declaration shall be null and void.
Subject to this Article 9, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the Sponsor;
provided that, any such transfer is subject to the condition precedent that
the transferor obtain the written opinion of nationally recognized independent
counsel experienced in such matters that such transfer would not cause more
than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee
would become an Investment Company.
(c) The Regular Trustees shall provide for the registration of
Securities and of transfers of Securities, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other governmental charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any
Securities, the Regular Trustees shall cause one or more new Securities to be
issued in the name of the designated transferee or transferees. Every Security
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such ▇▇▇▇▇▇'s attorney duly authorized in writing.
Each Security surrendered for registration of transfer shall be canceled by
the Regular Trustees. A transferee of a Security shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt
by such transferee of a Security. By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Declaration.
(d) The Trust shall not be required (i) to issue, register the
transfer of, or exchange, Preferred Securities during a period beginning at
the opening of business 15 days before the day of any selection of Preferred
Securities for redemption set forth in the terms and ending at the close of
business on the day of selection, or (ii) to register the transfer or exchange
of any Preferred Security so selected for redemption in whole or in part,
except the unredeemed portion of any Preferred Security being redeemed in
part.
SECTION 9.02. Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees
duly executed by the Holder or such ▇▇▇▇▇▇'s attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall be
cancelled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by
this Declaration.
SECTION 9.03. Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to
or interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust, the Property
Trustee, the Registrar or an co-registrar shall have actual or other notice
thereof.
SECTION 9.04. Book Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance, will be issued in
the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to the Depositary,
the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the
Trust in the name of Cede & Co., the nominee of the Depositary, and no
Preferred Security Beneficial Owner will receive a Definitive Preferred
Security Certificate representing such Preferred Security Beneficial Owner's
interests in such Global Certificates, except as provided in Section 9.07 .
Unless and until definitive, fully registered Preferred Security Certificates
(the "Definitive Preferred Security Certificates") have been issued to the
Preferred Security Beneficial Owners pursuant to Section 9.07:
(a) the provisions of this Section 9.04 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Depositary for all purposes of this Declaration (including the payment of
Distributions on the relevant Global Certificates and receiving approvals,
votes or consents hereunder) as the Holder of the Preferred Securities and the
sole holder of the Global Certificates and shall have no obligation to the
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.04 conflict
with any other provisions of this Declaration, the provisions of this Section
9.04 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Depositary and shall be limited to those
established by law and agreements between such Preferred Security Beneficial
Owners and the Depositary and/or the Participants and receive and transmit
payments of Distributions on the Global Certificates to such Participants. The
Depositary will make book entry transfers among the Participants.
SECTION 9.05. Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred
Security Beneficial Owners pursuant to Section 9.07, the Regular Trustees
shall give all such notices and communications specified herein to be given to
the Preferred Security Holders to the Depositary, and shall have no notice
obligations to the Preferred Security Beneficial Owners.
SECTION 9.06. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to such Preferred Securities.
SECTION 9.07. Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency notifies the Sponsor and the Trust that it
elects to discontinue its services as securities depositary with respect to
the Preferred Securities or if at any time such Clearing Agency ceases to be a
"clearing agency" registered under the Exchange Act and a successor Clearing
Agency is not appointed within 90 days after such discontinuance pursuant to
Section 9.06; or
(b) the Regular Trustees elect after consultation with the Sponsor
and the Trust to terminate the book entry system through the Clearing Agency
with respect to the Preferred Securities; or
(c) an Event of Default has occurred and is continuing, then:
(i) Definitive Preferred Security Certificates shall be prepared
by the Regular Trustees on behalf of the Trust with respect to such
Preferred Securities; and
(ii) Upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular
Trustees shall cause Definitive Preferred Security Certificates to be
delivered to Preferred Security Beneficial Owners in accordance with
the instructions of the Clearing Agency. Neither the Trustees nor the
Trust shall be liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be protected in
relying on, said instructions of the Clearing Agency. The Definitive
Preferred Security Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which
Preferred Securities may be listed, or to conform to usage.
SECTION 9.08. Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them harmless, then, in
the absence of notice that such Certificate shall have been acquired by a bona
fide purchaser, any Regular Trustee on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In connection with
the issuance of any new Certificate under this Section 9.08, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 9.08 shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be
found at any time.
ARTICLE 10
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.01. Liability.
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee and the terms of the
Securities the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Statutory Trust Act, the
Holders of the Preferred 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.
SECTION 10.02. Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets
from which Distributions to Holders of Securities might properly be paid.
SECTION 10.03. Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to
the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties
and liabilities of an Indemnified Person otherwise existing at law or in
equity (other than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest
of each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any interest
of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 10.04. Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration, except
that no Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Indemnified Person by reason of
gross negligence (or, in the case of the Property Trustee, negligence) or
willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees and expenses) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Sponsor of an
undertaking by or on behalf of the Indemnified Person to repay such amount if
it shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 10.03(a). The indemnification shall
survive the termination of this Declaration.
SECTION 10.05. Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar
or dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the
pursuit of any such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper. No Covered Person, the
Sponsor, the Delaware Trustee, or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee
and the Property Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Property Trustee may engage or be interested in any financial
or other transaction with the Sponsor or any Affiliate of the Sponsor, or may
act as depositary for, trustee or agent for, or act on any committee or body
of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE 11
ACCOUNTING
SECTION 11.01. Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.02. Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year by a firm of independent certified public accountants
selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a
balance sheet of the Trust as of the end of such Fiscal Year, and the related
statements of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States
federal income tax information statement, required by the Code, containing
such information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular
Trustees shall endeavor to deliver all such statements within 30 days after
the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
SECTION 11.03. Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
the Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.04. Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustee shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a distribution in the amount of the withholding to the
Holder. In the event of any claimed over withholding, Holders shall be limited
to an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made to any Holder, the
Trust may reduce subsequent Distributions to such Holder by the amount of such
withholding.
ARTICLE 12
AMENDMENTS AND MEETINGS
SECTION 12.01. Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two Regular
Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee;
(b) no amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from each
of the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of
the Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of the Property
Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor
or the Trust) that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the
Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only
with such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.01(c) and this Section 12.01 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article 4 shall not be amended without the consent of the Holders
of a Majority in liquidation preference of the Common Securities and;
(f) the rights of the holders of the Common Securities under Article
5 to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
preference of the Common Securities; and
(g) notwithstanding Section 12.01(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor; and
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority which amendment does
not have a material adverse effect on the rights, preferences or
privileges of the Holders.
SECTION 12.02. Meetings of the Holders of Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class
of Securities are entitled to act under the terms of this Declaration, the
terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Regular Trustees
shall call a meeting of the Holders of such class if directed to do so by the
Holders of at least 10% in liquidation preference of such class of Securities.
Such direction shall be given by delivering to the Regular Trustees one or
more requests in a writing stating that the signing Holders of Securities wish
to call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a meeting shall
specify in writing the Certificates held by the Holders of Securities
exercising the right to call a meeting and only those Securities represented
by the Certificates so specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the Holders
of Securities having a right to vote thereat at least 7 days and not
more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange on
which the Preferred Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders
of Securities owning not less than the minimum aggregate liquidation
preference of Securities that would be necessary to authorize or take
such action at a meeting at which all Holders of Securities having a
right to vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in writing. The
Regular Trustees may specify that any written ballot submitted to the
Security Holders for the purpose of taking any action without a
meeting shall be returned to the Trust within the time specified by
the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Statutory Trust Act, this Declaration, the terms
of the Securities, the Trust Indenture Act or the listing rules of
any stock exchange on which the Preferred Securities are then listed
or trading, provide otherwise, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings
of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE 13
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.01. 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 Declaration and
at the time of Closing, and each Successor Property Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Property
Trustee's acceptance of its appointment as Property Trustee that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with corporate power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration.
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate action
on the part of the Property Trustee. The Declaration has been duly executed
and delivered by the Property Trustee, and constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or By-laws of the Property Trustee.
(d) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the
Declaration.
SECTION 13.02. 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 Declaration and
at the time of Closing, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Property
Trustee's acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with corporate power and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration.
(b) The execution, delivery and performance by the Delaware Trustee
of the Declaration has been duly authorized by all necessary corporate action
on the part of the Delaware Trustee. The Declaration 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) The execution, delivery and performance of the Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or By-laws of the Delaware Trustee.
(d) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the
Declaration.
(e) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
(f) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The
Declaration under Delaware law 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).
ARTICLE 14
[RESERVED]
SECTION 14.01. [Reserved].
ARTICLE 15
MISCELLANEOUS
SECTION 15.01. Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities):
c/o Ohio Casualty Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
(b) if given to the Property Trustee, at the mailing address set
forth below (or such other address as the Property Trustee may give notice of
to the Holders of the Securities):
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
Attention: Corporate Trust Administration
(c) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
Ohio Casualty Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
(d) if given to any other Holder, at the address set forth on the
books and records of the Trust or the Registrar, as applicable.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 15.02. Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 15.03. Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust.
The provisions of this Declaration shall be interpreted to further this
intention of the parties.
SECTION 15.04. Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 15.05. Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 15.06. Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 15.07. Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
[________________________________________]
as Trustee
[________________________________________]
as Trustee
[________________________________________]
as Trustee
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:_______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:_______________________________________
Name:
Title:
OHIO CASUALTY CORPORATION
as Sponsor
By:_______________________________________
Name:
Title:
ANNEX I
TERMS OF
[___]% PREFERRED SECURITIES
[___] % COMMON SECURITIES
Pursuant to Section 7.01 of the Amended and Restated Declaration of
Trust, dated as of [Date] (as amended from time to time, the "Declaration"),
the designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities and the Common Securities are set
out below (each capitalized term used but not defined herein has the meaning
set forth in the Declaration or, if not defined in such Declaration, as
defined in the Prospectus Supplement referred to below):
1. Designation and Number.
(a) "Preferred Securities." [_______] Preferred Securities of the
Trust with an aggregate liquidation preference with respect to
the assets of the Trust of [__________] Dollars ($[_________])[,
plus up to an additional [______________] Preferred Securities
of the Trust with an aggregate liquidation preference with
respect to the assets of the Trust of [______________] Dollars
($[________]) solely to cover over-allotments, as provided for
in the underwriting agreement (the "Additional Preferred
Securities"),] and a liquidation preference with respect to the
assets of the Trust of $[ ] per Preferred Security, are hereby
designated for the purposes of identification only as "[___]%
Preferred Securities (liquidation preference $[__] per Preferred
Security)" (the "Preferred Securities"). The Preferred Security
Certificates evidencing the Preferred Securities shall be
substantially in the form attached hereto as Exhibit A-1, with
such changes and additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice or to conform
to the rules of any stock exchange or other organization on
which the Preferred Securities are listed.
(b) "Common Securities." [_____] Common Securities of the Trust with
an aggregate liquidation preference with respect to the assets
of the Trust of [_______________________] Dollars
($[________])[, plus up to an additional [____] Common
Securities of the Trust with an aggregate liquidation preference
with respect to the assets of the Trust of
[____________________] Dollars ($[_______]) to meet the capital
requirements of the Trust in the event of an issuance of
Additional Preferred Securities,] and a liquidation amount with
respect to the assets of the Trust of $[__] per Common Security,
are hereby designated for the purposes of identification only as
"[___]% Common Securities (liquidation amount $[__] per Common
Security)" (the "Common Securities"). The Common Security
Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Exhibit A-2, with
such changes and additions thereto or deletions therefrom as may
be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate
per annum of [___]% (the "Coupon Rate") of the stated
liquidation amount of $[__] per Security, such rate being the
rate of interest payable on the Debentures to be held by the
Property Trustee. Distributions in arrears for more than one
[semi-annual period] [quarter] will bear interest thereon
compounded [semi-annually] [quarterly] at the Coupon Rate (to
the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Property Trustee
and to the extent the Property Trustee has funds available
therefor. The amount of Distributions payable for any period
will be computed for any full [semi-annually] [quarterly]
Distribution period on the basis of a 360- day year of twelve
30-day months, and for any period shorter than a full
[semi-annually] [quarterly] Distribution period for which
Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative, will accrue
from the date of original issuance and will be payable
[semi-annually] [quarterly] in arrears, on the following dates,
which dates correspond to the interest payment dates on the
Debentures: [_________], of each year, commencing on
[________________], except as otherwise described below. The
Debenture Issuer has the right under the Indenture to defer
payments of interest by extending the interest payment period
from time to time on the Debentures for a period not exceeding
[_________] consecutive [semi-annual periods] [quarters] (each
an "Extension Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral,
[semi-annually] [quarterly] Distributions will continue to
accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded [semi-annually]
[quarterly] during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer
may further extend such Extension Period; provided that such
Extension Period together with all such previous and further
extensions thereof may not exceed [_________] consecutive
[semi-annual periods] [quarters]. Payments of accrued
Distributions will be payable to Holders as they appear on the
books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to
the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on
the relevant record dates. The relevant record dates shall be 15
days prior to the relevant payment dates, except as otherwise
described in this Annex I to the Declaration. Subject to any
applicable laws and regulations and the provisions of the
Declaration, each such payment in respect of Preferred
Securities being held in book-entry form through The Depository
Trust Company (the "Depositary") will be made as described under
the heading ["Description of the Preferred Securities --
Book-Entry Only Issuance-- The Depository Trust Company"] in the
Prospectus Supplement. The relevant record dates for the Common
Securities shall be the same record dates as for the Preferred
Securities. Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a result of
the Debenture Issuer having failed to make a payment under the
Debentures, will cease to be payable to the Person in whose name
such Securities are registered on the relevant record date, and
such defaulted Distribution will instead be payable to the
Person in whose name such Securities are registered on the
special record date or other specified date determined in
accordance with the Indenture. If any date on which
Distributions are payable on the Securities is not a Business
Day, then payment of the Distribution payable on such date will
be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein) among
the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled
to receive out of the assets of the Trust available for distribution to
Holders of Securities after satisfaction of liabilities of creditors of the
trust an amount equal to the aggregate of the stated liquidation preference of
$[__] per Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, Debentures in an
aggregate principal amount equal to the aggregate stated liquidation
preference of such Securities, with an interest rate equal to the Coupon Rate
of, and bearing accrued and unpaid interest in an amount equal to the accrued
and unpaid Distributions on, such Securities, shall be distributed on a Pro
Rata basis to the Holders of the Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis in
accordance with paragraph 9 hereof.
4. Redemption and Distribution.
(a) Upon the repayment or payment of the Debentures in whole or in
part, whether at maturity or upon redemption or otherwise, the
proceeds from such repayment or redemption shall be
simultaneously applied to redeem Securities having an aggregate
liquidation preference equal to the aggregate principal amount
of the Debentures so repaid or redeemed at a redemption price of
$[__] per Security together with accrued and unpaid
Distributions thereon through the date of the redemption,
payable in cash (the "Redemption Price"). Holders will be given
not less than 30 nor more than 60 days' notice of such
redemption. Upon the repayment of the Debentures at maturity or
upon any acceleration, earlier redemption or otherwise, the
proceeds from such repayment will be applied to redeem the
Securities, in whole, upon not less than 30 nor more than 60
days' notice.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities
will be redeemed Pro Rata and the Preferred Securities to be
redeemed will be as described in Paragraph 4(e)(ii) below.
(c) If, at any time, a Tax Event shall occur and be continuing the
Sponsor shall cause the Regular Trustees to liquidate the Trust
and, after satisfaction of creditors of the Trust, cause
Debentures to be distributed to the Holders of the Securities in
liquidation of the Trust within 90 days following the occurrence
of such Tax Event (the "90 Day Period"); provided, however, that
such liquidation and distribution shall be conditioned on (i)
the Regular Trustees' receipt of an opinion of a nationally
recognized independent tax counsel (reasonably acceptable to the
Regular Trustees) experienced in such matters (a "No Recognition
Opinion"), which opinion may rely on published revenue rulings
of the Internal Revenue Service, to the effect that the Holders
of the Securities will not recognize any income, gain or loss
for United States Federal income tax purposes as a result of
such liquidation and distribution of Debentures, and (ii) the
Sponsor being unable to avoid such Tax Event within such 90 Day
Period by taking some ministerial action or pursuing some other
reasonable measure that, in the sole judgment of the Sponsor,
will have no adverse effect on the Trust, the Sponsor or the
Holders of the Securities and will involve no material cost
("Ministerial Action").
If (i) the Debenture Issuer has received an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent
tax counsel (reasonably acceptable to the Regular Trustees)
experienced in such matters that, as a result of a Tax Event,
there is more than an insubstantial risk that the Debenture
Issuer would be precluded from deducting the interest on the
Debentures for United States Federal income tax purposes, even
after the Debentures were distributed to the Holders of
Securities upon liquidation of the Trust as described in this
paragraph 4(c), or (ii) the Regular Trustees shall have been
informed by such tax counsel that it cannot deliver a No
Recognition Opinion, the Debenture Issuer shall have the right,
upon not less than 30 nor more than 60 days' notice, and within
90 days following the occurrence of such Tax Event, to redeem
the Debentures in whole (but not in part) for cash, at the Tax
Event Prepayment Price plus accrued and unpaid interest and,
following such redemption, all the Securities will be redeemed
by the Trust at the Tax Event Redemption Price plus accrued and
unpaid distributions; provided, however, that, if at the time
there is available to the Debenture Issuer or the Trust the
opportunity to eliminate, within such 90 Day Period, the Tax
Event by taking some Ministerial Action, the Trust or the
Debenture Issuer will pursue such Ministerial Action in lieu of
redemption.
"Adjusted Treasury Rate" means, with respect to any
prepayment date, the rate per annum equal to the [semi-annual]
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable
Treasury Price for such prepayment date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Debentures to be prepaid
that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to
the remaining term of the Debentures.
"Comparable Treasury Price" means, with respect to any
prepayment date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third Business Day
preceding such prepayment date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such Business Day, (A) the average of the
Reference Treasury Dealer Quotations for such prepayment date,
after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Debenture Trustee obtains fewer
than three such Reference Treasury Dealer quotations, the
average of all such Quotations.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Debenture Issuer.
"Reference Treasury Dealer" means a nationally recognized
U.S. Government securities dealer in New York City selected by
the Debenture Issuer.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any prepayment date, the
average, as determined by the Debenture Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business
Day preceding such repayment date.
"Tax Event" means that the Sponsor shall have received an
opinion of a nationally recognized independent tax counsel
(reasonably acceptable to the Regular Trustees) experienced in
such matters (a "Dissolution Tax Opinion") to the effect that as
a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority therefor or therein, or (b) any amendment to,
or change in, an interpretation or application of any such laws
or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any
legislation and the publication of any judicial decision or
regulatory determination on or after the date of the Prospectus
Supplement), which amendment or change is effective or which
interpretation or pronouncement is announced on or after the
date of the Prospectus Supplement, there is more than an
insubstantial risk that (i) the Trust is or will be subject to
United States Federal income tax with respect to interest
received on the Debentures, (ii) interest payable by the
Debenture Issuer to the Trust on the Debentures is not or will
not be deductible by the Debenture Issuer for United States
Federal income tax purposes, or (iii) the Trust is, or will be
within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties, assessments or other
governmental charges.
"Tax Event Prepayment Price" means a prepayment price equal
to the greater of (1) 100% of the principal amount thereof or
(2) the sum, as determined by a Quotation Agent, of the present
values of the remaining scheduled payments of principal and
interest (after giving effect to payment of accrued interest to
the date of prepayment on the Debentures after the prepayment
date), discounted to the prepayment date on a [semi-annual]
basis at the Adjusted Treasury Rate plus basis points if prepaid
on or prior to , and basis points if prepaid thereafter, plus,
in any case, accrued and unpaid interest to the prepayment date.
"Tax Event Redemption Price" means the redemption price
equal to the Tax Event Prepayment Price upon an optional
prepayment by the Debenture Issuer of the Debentures upon the
occurrence and continuation of a Tax Event.
If an Investment Company Event (as hereinafter defined)
shall occur and be continuing, the Sponsor shall cause the
Regular Trustees to liquidate the Trust and cause the Debentures
to be distributed to the Holders of the Securities in
liquidation of the Trust within 90 days following the occurrence
of such Investment Company Event.
"Investment Company Event" means the occurrence of a change
in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940
Act Law"), to the effect that the Trust is or will be considered
an "investment company" which is required to be registered under
the United States Investment Company Act, as amended, which
Change in 1940 Act Law becomes effective on or after the date of
the Prospectus Supplement.
After the date fixed for any distribution of Debentures: (i)
the Securities will no longer be deemed to be outstanding, (ii)
the Depositary or its nominee (or any successor Clearing Agency
or its nominee), as record Holder of Preferred Securities
represented by global certificates, will receive a registered
global certificate or certificates representing the Debentures
to be delivered upon such distribution and (iii) any
certificates representing Securities, except for certificates
representing Preferred Securities held by the Depositary or its
nominee (or any successor Clearing Agency or its nominee), will
be deemed to represent Debentures having an aggregate principal
preference equal to the aggregate stated liquidation preference
of such Securities, with accrued and unpaid interest equal to
accrued and unpaid Distributions on such Securities until such
certificates are presented to the Debenture Issuer or its agent
for transfer or reissuance.
(d) The Securities will not be redeemed unless all accrued and
unpaid Distributions have been paid on all Securities for all
[semi-annual] [quarterly] Distribution periods terminating on or
before the date of redemption.
(e) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption
of the Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect
in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with
respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Preferred Securities,
it being understood that, in respect of Preferred Securities
registered in the name of and held of record by the
Depositary (or any successor Clearing Agency) or any
nominee, the distribution of the proceeds of such redemption
will be made to each Clearing Agency Participant (or Person
on whose behalf such nominee holds such securities) in
accordance with the procedures applied by such agency or
nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this
paragraph 4 (which notice will be irrevocable), then (A)
with respect to Preferred Securities held in book-entry
form, by 12:00 noon, New York City time, on the redemption
date, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures,
the Property Trustee will deposit irrevocably with the
Depositary (or successor clearing agency) funds sufficient
to pay the amount payable on redemption with respect to such
Preferred Securities and will give the Depositary
irrevocable instructions and authority to pay the amount
payable on redemption to the Holders of such Preferred
Securities, and (B) with respect to Preferred Securities
issued in certificated form and Common Securities, provided
that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Property
Trustee will irrevocably deposit with the Paying Agent funds
sufficient to pay the amount payable on redemption to the
Holders of such Securities upon surrender of their
certificates. If a Redemption/Distribution Notice shall have
been given and funds deposited as required, then on the date
of such deposit, all rights of Holders of such Securities so
called for redemption will cease, except the right of the
Holders of such Securities to receive the redemption price,
but without interest on such redemption price. Neither the
Regular Trustees nor the Trust shall be required to register
or cause to be registered the transfer of any Securities
that have been so called for redemption. If any date fixed
for redemption of Securities is not a Business Day, then
payment of the amount payable on such date will be made on
the next succeeding day that is a Business Day (without any
interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as
if made on such date fixed for redemption. If payment of the
redemption price in respect of any Securities is improperly
withheld or refused and not paid either by the Trust or by
the Sponsor as guarantor pursuant to the relevant Securities
Guarantee, Distributions on such Securities will continue to
accrue at the then applicable rate, from the original
redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for
redemption for purposes of calculating the amount payable
upon redemption (other than for purposes of calculating any
premium).
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in the case of
Preferred Securities held in book-entry form, the Depositary
and, in the case of Securities held in certificated form,
the Holders of such certificates and (B) in respect of the
Common Securities, the Holder thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States Federal securities laws),
the Sponsor or any of its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities
by tender, in the open market or by private agreement.
5. [RESERVED].
6. Voting Rights - Preferred Securities.
(a) Except as provided under paragraph 7, in the Statutory Trust Act
and as otherwise required by law and the Declaration, the
Holders of the Preferred Securities will have no voting rights.
Subject to the requirements set forth in this paragraph, the
Holders of a majority in liquidation preference of the Preferred
Securities, voting separately as a class may direct the time,
method, and place of conducting any proceeding for any remedy
available to the Property Trustee, or direct the exercise of any
trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee,
as holder of the Debentures, to (i) exercise the remedies
available under the Indenture with respect to the Debentures,
(ii) waive any past default and its consequences that is
waivable under Section 5.13 of the Indenture, or (iii) exercise
any right to rescind or annul a declaration that the principal
of all the Debentures shall be due and payable, provided,
however, that, where a consent under the Indenture would require
the consent or act of the Holders of greater than a majority of
the Holders in principal amount of Debentures affected thereby
(a "Super Majority"), the Property Trustee may only give such
consent or take such action at the written direction of the
Holders of at least the proportion in liquidation preference of
the Preferred Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures
outstanding. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of
the Preferred Securities. Other than with respect to directing
the time, method and place of conducting any remedy available to
the Property Trustee or the Debenture Trustee as set forth
above, the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Preferred
Securities under this paragraph unless the Property Trustee has
received an opinion of tax counsel to the effect that, as a
result of such action, the Trust will not fail to be classified
as a grantor trust or partnership for United States Federal
income tax purposes. If the Property Trustee fails to enforce
its rights, as holder of the Debentures, under the Indenture,
any Holder of Preferred Securities may, after a period of 30
days has elapsed from such ▇▇▇▇▇▇'s written request to the
Property Trustee to enforce such rights, institute a legal
proceeding directly against the Debenture Issuer, to enforce the
rights of the Property Trustee, as holder of the Debentures,
under the Indenture, without first instituting any legal
proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, in the event the Debenture Issuer
shall fail to make any payment on the Debentures when due,
holders of the Preferred Securities shall have the right to
institute a direct action against the Debenture Issuer for
payment of such amounts. Any required approval or direction of
Holders of Preferred Securities may be given at a separate
meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the
Trust or pursuant to written consent. The Regular Trustees will
cause a notice of any meeting at which Holders of Preferred
Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be
mailed to each Holder of record of Preferred Securities. Each
such notice will include a statement setting forth the following
information: (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred
Securities or to distribute the Debentures in accordance with
the Declaration and the terms of the Securities.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned
by the Sponsor or any Affiliate of the Sponsor shall not be
entitled to vote or consent and shall, for purposes of such vote
or consent, be treated as if they were not outstanding.
7. Voting Rights - Common Securities.
(a) The Holders of the Common Securities will only have such voting
rights as provided under paragraphs 7(b), (c) and 8 herein, in
the Statutory Trust Act and as otherwise required by law and the
Declaration, the Holders of the Common Securities will have no
voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article 5 of the Declaration, to vote to appoint, remove or
replace any Trustee.
(c) Subject to Section 2.06 of the Declaration and only after the
Event of Default with respect to the Preferred Securities has
been cured, waived, or otherwise eliminated and subject to the
requirements of the second to last sentence of this paragraph,
the Holders of a Majority in liquidation preference of the
Common Securities, voting separately as a class, may direct the
time, method, and place of conducting any proceeding for any
remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under the
Declaration, including (i) directing the time, method, place of
conducting any proceeding for any remedy waivable to the
Debenture Trustee, or exercising any trust or power conferred on
the Debenture Trustee with respect to the Debentures, (ii) waive
any past default and its consequences that is waivable under
Section 5.13 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the
Debentures shall be due and payable, provided that, where a
consent or action under the Indenture would require the consent
or act of the Holders of greater than a majority in principal
amount of Debentures affected thereby (a "Super Majority"), the
Property Trustee may only give such consent or take such action
at the written direction of the Holders of at least the
proportion in liquidation preference of the Common Securities
which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Pursuant to this
paragraph 7(c), the Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of
the Preferred Securities. Other than with respect to directing
the time, method and place of conducting any remedy available to
the Property Trustee or the Debenture Trustee as set forth
above, the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Property Trustee has
received an opinion of tax counsel to the effect that, as a
result of such action the Trust will not fail to be classified
as a grantor trust or a partnership for United States Federal
income tax purposes. If the Property Trustee fails to enforce
its rights, as holder of the Debentures, under the Indenture,
any Holder of Common Securities may, after a period of 30 days
has elapsed from such ▇▇▇▇▇▇'s written request to the Property
Trustee to enforce such rights, institute a legal proceeding
directly against the Debenture Issuer, to enforce the Property
Trustee's rights, as holder of the Debentures, under the
Indenture, without first instituting any legal proceeding
against the Property Trustee or any other Person.
Notwithstanding the foregoing, in the event the Debenture Issuer
shall fail to make any payment on the Debentures when due,
Holders of the Common Securities shall have the right to
institute a direct action against the Debenture Issuer for
payment of such amounts. Any required approval or direction of
Holders of Common Securities may be given at a separate meeting
of Holders of Common Securities convened for such purpose, at a
meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a
notice of any meeting at which Holders of Common Securities are
entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will
include a statement setting forth the following information: (i)
the date of such meeting or the date by which such action is to
be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents. No
vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or
to distribute the Debentures in accordance with the Declaration
and the terms of the Securities.
8. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.01 of the
Declaration, if any proposed amendment to the Declaration
provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities, whether by way
of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than
as described in Section 8.01 of the Declaration, then the
Holders of outstanding Securities as a class, will be entitled
to vote on such amendment or proposal (but not on any other
amendment or proposal) and such amendment or proposal shall not
be effective except with the approval of the Holders of at least
66-2/3% in liquidation preference of the Securities, voting
together as a single class; provided, however, if any amendment
or proposal referred to in clause (i) above would adversely
affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to
vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of
66-2/3% in liquidation preference of such class of Securities.
(b) In the event the consent of the Property Trustee as the holder
of the Debentures is required under the Indenture with respect
to any amendment, modification or termination on the Indenture
or the Debentures, the Property Trustee shall request the
written direction of the Holders of the Securities with respect
to such amendment, modification or termination and shall vote
with respect to such amendment, modification or termination as
directed, in writing, by a Majority in liquidation preference of
the Securities voting together as a single class; provided,
however, that where a consent under the Indenture would require
the consent of the holders of greater than a majority in
aggregate principal amount of the Debentures (a "Super
Majority"), the Property Trustee may only give such consent at
the written direction of the Holders of at least the same
proportion in aggregate stated liquidation preference of the
Securities; provided, further, that the Property Trustee shall
not take any action in accordance with the directions of the
Holders of the Securities under this paragraph 8(b) unless the
Property Trustee has received an opinion of tax counsel to the
effect that for the purposes of United States Federal income tax
the Trust will not be classified as other than a grantor trust
or partnership on account of such action.
9. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each
Holder of Securities according to the aggregate liquidation preference of the
Securities held by the relevant Holder in relation to the aggregate
liquidation preference of all Securities outstanding unless, on any
distribution date or redemption date an Event of Default under the Declaration
has occurred and is continuing, in which case no payment of any distribution
on, or amount payable upon redemption of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid distributions on all outstanding Preferred Securities
for all distribution periods terminating on or prior thereto, or in the case
of payment of the amount payable upon redemption of the Preferred Securities,
the full amount of such amount in respect of all outstanding Preferred
Securities shall have been made or provided for, and all funds available to
the Property Trustee shall first be applied to the payment in full in cash of
all distributions on, or the amount payable upon redemption of Preferred
Securities then due and payable.
10. Ranking.
The Preferred Securities rank pari passu and payment thereon shall be
made Pro Rata with the Common Securities except that, where an Event of
Default occurs and is continuing under the Indenture in respect of the
Debentures held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights to
payment of the Holders of the Preferred Securities.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request
to the Sponsor at its principal place of business.
EXHIBIT A-1
FORM OF PREFERRED SECURITY
[FORM OF FACE OF SECURITY]
[Include if Preferred Security is in global form and The Depository
Trust Company is the U. S. Depositary-- UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
[Include if Preferred Security is in global form -- TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED
TO BELOW.]
Certificate Number Number of Preferred Securities
[CUSIP NO. [ ]]
Preferred Securities
of
[Ohio Casualty Capital Trust]
[___]% Preferred Securities
(liquidation preference $[__] per Preferred Security)
[Ohio Casualty Capital Trust], a statutory trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that (the
"Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [___]% Preferred Securities (liquidation preference $[__] 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. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of [Date], as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Preferred Securities Guarantee
to the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Reference is hereby made to select provisions of the Preferred
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
Unless the Property Trustee's Certificate of Authentication hereon
has been properly executed, these Preferred Securities shall not be entitled
to any benefit under the Declaration or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of ____________, ____.
[Ohio Casualty Capital Trust]
By:___________________________
Name:
Title:
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated: _________, ____
THE BANK OF NEW YORK,
as Property Trustee
By:________________________
Authorized Signatory
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a
rate per annum of [___]% (the "Coupon Rate") of the stated liquidation
preference 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 [semi-annual period] [quarter] will
bear interest thereon compounded [semi-annually] [quarterly] at the Coupon
Rate (to the extent permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee
and to the extent the Property Trustee has funds available therefor. The
amount of Distributions payable for any period will be computed for any full
[semi-annual] [quarterly] Distribution period on the basis of a 360-day year
of twelve 30-day months, and for any period shorter than a full [semi-annual]
[quarterly] Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed per 30-day month.
Except as otherwise described below, distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable [semi-annually] [quarterly] in arrears, on
[______________] of each year, commencing on [________________], to Holders of
record fifteen (15) days prior to such payment dates, which payment dates
shall correspond to the interest payment dates on the Debentures. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding [____] consecutive [semi-annual periods]
[quarters] (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
[semi-annual] [quarterly] Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded [semi-annually] [quarterly] during any such Extension Period. Prior
to the termination of any such Extension Period, the Debenture Issuer may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
[_____] consecutive [semi-annual periods] [quarters]. Payments of accrued
Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
agent to transfer this Preferred Security 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) Signature
Guarantee:(2) _______________________________________________
_______________________
(2) (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.)
EXHIBIT A-2
FORM OF COMMON SECURITY
[FORM OF FACE OF SECURITY]
[THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN EFFECTIVE
REGISTRATION STATEMENT.]
[OTHER THAN AS PROVIDED IN THE DECLARATION (AS DEFINED HEREIN), THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO
A RELATED PARTY (AS DEFINED IN THE DECLARATION) OF Ohio Casualty CorpORATION]
Certificate Number Number of Common Securities
Common Securities
of
[Ohio Casualty Capital Trust]
____% Common Securities
(liquidation preference $[___] per Common Security)
[Ohio Casualty Capital Trust], a statutory trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that
________________________________________________________________________________
______________ (the "Holder") is the registered owner of common securities of
the Trust representing undivided beneficial interests in the assets of the
Trust designated the ___% Common Securities (liquidation preference $[___] per
Common Security) (the "Common Securities"). The Common 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. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of [Date], as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Common Securities Guarantee to
the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Common Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Sponsor at its principal place of
business.
Reference is hereby made to select provisions of the Common
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States Federal
income tax purposes the Debentures as indebtedness and the Common Securities
as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of ________________ ___, ______ .
[Ohio Casualty Capital Trust]
By:_____________________________
Name:
Title:
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of ___% (the "Coupon Rate") of the stated liquidation preference 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 [semi-annual] [quarterly] period will bear interest thereon
compounded [semi-annually] [quarterly] at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated.
A Distribution is payable only to the extent that payments are made in respect
of the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full [semi-annual] [quarterly]
Distribution period on the basis of a 360-day year of twelve 30-day months,
and for any period shorter than a full [semi-annual] [quarterly] Distribution
period for which Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable [semi-annually] [quarterly] in arrears, on
[_________________] of each year, commencing on [________________], to Holders
of record fifteen (15) days prior to such payment dates, which payment dates
shall correspond to the interest payment dates on the Debentures. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding [_______] consecutive [semi-annual]
[quarterly] periods (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
[semi-annual] [quarterly] Distributions will continue to accrue with interest
thereon (to the extent permitted by applicable law) at the Coupon Rate
compounded [semi-annually] [quarterly] during any such Extension Period. Prior
to the termination of any such Extension Period, the Debenture Issuer may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
[______] consecutive [semi-annual] [quarterly] periods. Payments of accrued
Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
agent to transfer this Preferred Security 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) Signature
Guarantee:(3) _______________________________________________________
__________________________
(3) (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.)