Exhibit A-13(a)
AMENDED AND RESTATED
TRUST AGREEMENT
among
ENTERGY GULF STATES, INC., as Depositor
and
THE BANK OF NEW YORK, as Property Trustee
THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee
Xxxxxx X. XxXxxx,
Xxxxxxx X. Xxxxx, Xx.
and
Xxxxx Xxxxxxxxx XX, as Administrative Trustees
Dated as of January 28, 1997
ENTERGY GULF STATES CAPITAL I
Entergy Gulf States Capital I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a),8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02, 8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
January 28, 1997, between (i) Entergy Gulf States, Inc., a Texas
corporation (the "Depositor"), (ii) The Bank of New York, a
banking corporation duly organized and existing under the laws of
New York, as trustee (the "Property Trustee"), (iii) The Bank of
New York (Delaware), a banking corporation duly organized under
the laws of Delaware, as trustee (the "Delaware Trustee") and
(iv) Xxxxxx X. XxXxxx, Xxxxxxx X. Xxxxx, Xx. and Xxxxx Xxxxxxxxx
XX, each an individual, as trustee, and each of whose address is
c/o Entergy Gulf States, Inc., 000 Xxxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxx 00000 (each, an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee and the Administrative Trustees
referred to collectively as the "Trustees") and (v) the several
Holders (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and Xxxxxxx X. Xxxxx, Xx., as Administrative
Trustee, have heretofore duly declared and established a business
trust pursuant to the Delaware Business Trust Act (as hereinafter
defined) by the entering into of that certain Trust Agreement,
dated as of December 2, 1996 (the "Original Trust Agreement"),
and by the execution by the Property Trustee, the Delaware
Trustee and Xxxxxxx X. Xxxxx, Xx., as Administrative Trustee and
filing with the Secretary of State of the State of Delaware of
the Certificate of Trust, filed on December 2, 1996, the form of
which is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and Xxxxxxx X. Xxxxx, Xx., as Administrative Trustee,
desire to amend and restate the Original Trust Agreement in its
entirety as set forth herein to provide for, among other things,
(i) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Debentures (as hereinafter
defined), (ii) the issuance of the Common Securities (as
hereinafter defined) by the Trust to the Depositor, (iii) the
issuance of the Preferred Securities (as hereinafter defined) by
the Trust pursuant to the Underwriting Agreement (as hereinafter
defined) and (iv) the appointment of additional Administrative
Trustees of the Trust;
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other parties and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
I. Defined Terms
Section 1.01. (a) Definitions. For all purposes of this
Trust Agreement, except as otherwise expressly provided or unless
the context otherwise requires:
(b) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(c) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(d) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(e) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust
Securities of a given Liquidation Amount and for a given period,
the amount of additional interest accrued on interest in arrears
and paid by the Depositor on a Like Amount of Debentures for such
period.
"Administrative Trustee" means each of the
individuals identified as an "Administrative Trustee" in the
preamble to this Trust Agreement solely in their capacities as
Administrative Trustees of the Trust created hereunder and not in
their individual capacities, or such trustee's successor in
interest in such capacity, or any successor trustee appointed as
herein provided.
"Affiliate" of any specified Person means any
other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Bankruptcy Event" means, with respect to any
Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver, liqui
dator, assignee, trustee sequestrator or other similar official
of such Person or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under Federal bankruptcy law or
any other applicable Federal or State law, or the consent by it
to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due.
"Bankruptcy Laws" has the meaning specified in
Section 10.09.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Depositor to have been duly adopted by the Depositor's Board of
Directors or a duly authorized committee thereof or officers of
the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect
on the date of such certification, and delivered to the
appropriate Trustee.
"Book-Entry Preferred Securities Certificates"
mean certificates representing Preferred Securities issued in
global, fully registered form to the Securities Depository (as
hereinafter defined) as described in Section 5.11.
"Business Day" means a day other than (x) a
Saturday or a Sunday, (y) a day on which banks in New York, New
York are authorized or obligated by law or executive order to
remain closed or (z) a day on which the Property Trustee's
Corporate Trust Office or the Debenture Trustee's principal
corporate trust office is closed for business.
"Certificate Depository Agreement" means the
agreement among the Trust, the Depositor and The Depository Trust
Company, as the initial Securities Depository, dated as of the
Closing Date, relating to the Trust Securities Certificate, as
the same may be amended and supplemented from time to time.
"Certificate of Trust" has the meaning specified
in Section 2.07(d).
"Closing Date" means the date of delivery of this
Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" means an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a
certificate evidencing ownership of Common Securities,
substantially in the form attached as Exhibit B.
"Corporate Trust Office" means the principal
corporate trust office of the Property Trustee located in New
York, New York.
"Covered Person" means: (a) any officer,
director, shareholder, beneficial owner, partner, member,
representative, employee or agent of the Trust or the Trust's
Affiliates; and (b) any Holder of Trust Securities.
"Debenture Event of Default" means an "Event of
Default" as defined in the Subordinated Indenture.
"Debenture Redemption Date" means "Redemption
Date" as defined in the Subordinated Indenture with respect to
the Debentures.
"Debenture Trustee" means The Bank of New York, a
New York banking corporation organized under the laws of the
State of New York and any successor thereto, as trustee under the
Subordinated Indenture.
"Debentures" means the $87,628,875 aggregate
principal amount of the Depositor's 8.75% Junior Subordinated
Deferrable Interest Debentures, Series A, due March 31, 2046,
issued pursuant to the Subordinated Indenture.
"Definitive Preferred Securities Certificates"
means Preferred Securities Certificates issued in certificated,
fully registered form as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of
Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq.,
as it may be amended from time to time.
"Delaware Trustee" means the banking corporation
identified as the "Delaware Trustee" in the preamble to this
Trust Agreement solely in its capacity as Delaware Trustee of the
Trust formed hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the
preamble to this Trust Agreement.
"Distribution Date" has the meaning specified in
Section 4.01(a).
"Distributions" means amounts payable in respect
of the Trust Securities as provided in Section 4.01.
"Early Termination Event" has the meaning
specified in Section 9.02.
"Event of Default" means any one of the following
events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body):
(i) the occurrence of a Debenture Event of
Default; or
(ii) default by the Trust in the payment of
any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Trust in the payment of
any Redemption Price (as hereinafter defined) when it becomes due
and payable; or
(iv) default in the performance, or breach,
in any material respect of any covenant or warranty of the
Trustees in this Trust Agreement (other than a covenant or
warranty a default in whose performance or breach is specifically
dealt with in clause (ii) or (iii), above) and continuation of
such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the defaulting
Trustee or Trustees by the Holders of at least 10% in Liquidation
Amount of the Outstanding Preferred Securities a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(v) the occurrence of a Bankruptcy Event with
respect to the Trust.
"Exchange Act" has the meaning specified in Section
2.07(c)(iv).
"Expense Agreement" means the Agreement as to
Expenses and Liabilities between the Depositor and the Trust,
substantially in the form attached as Exhibit C, as amended from
time to time.
"Expiration Date" shall have the meaning specified
in Section 9.01.
"Guarantee" means the Guarantee Agreement executed
and delivered by the Depositor and The Bank of New York, a New
York banking corporation, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit
of the Holders of the Preferred Securities, as amended from time
to time.
"Indemnified Person" means any Trustee, any
Affiliate of any Trustee, or any officer, director, shareholder,
member, partner, employee, representative or agent of any
Trustee, or any employee or agent of the Trust or its Affiliates.
"Investment Company Event" means the occurrence of
a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority to the effect that
the Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which change in
law becomes effective on or after the date of original issuance
of the Preferred Securities.
"Lien" means any lien, pledge, charge,
encumbrance, mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) with respect to a
redemption of Trust Securities, Trust Securities having a
Liquidation Amount equal to the principal amount of Debentures to
be contemporaneously redeemed in accordance with the Subordinated
Indenture and the proceeds of which will be used to pay the
Redemption Price of such Trust Securities and (ii) with respect
to a distribution of Debentures to the Holders of Trust
Securities in connection with a termination and liquidation of
the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom
such Debentures are distributed.
"Liquidation Amount" means the stated amount of
$25 per Trust Security.
"Liquidation Date" means the date on which
Debentures are to be distributed to Holders of Trust Securities
in connection with a termination and liquidation of the Trust
pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning
specified in Section 9.04(e).
"Officers' Certificate" means a certificate signed
by the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of
the examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made
such examination or investigation as, in such officer's opinion,
is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of
each such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Trust, the Property Trustee,
the Delaware Trustee or the Depositor, but not an employee of the
Trust, the Property Trustee, the Delaware Trustee or the
Depositor, and who shall be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning
specified in the recitals to this Trust Agreement.
"Outstanding," when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
Securities theretofore delivered under this Trust Agreement,
except:
(i) Preferred Securities theretofore canceled by
the Property Trustee or delivered to the Property Trustee for
cancellation;
(ii) Preferred Securities for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Property Trustee or any Paying Agent for the
Holders of such Preferred Securities; provided that, if such
Preferred Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust Agreement;
and
(iii) Preferred Securities in exchange for or
in lieu of which other Preferred Securities have been delivered
pursuant to this Trust Agreement, including pursuant to Sections
5.04, 5.05, 5.11 or 5.13;
provided, however, that in determining whether the Holders
of the requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate
of the Depositor or any Trustee shall be disregarded and deemed
not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in conclusively relying upon any such
request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be
so owned shall be so disregarded and (b) the foregoing shall not
apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with
respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial
owner of a Book-Entry Preferred Securities Certificate as
reflected in the records of the Securities Depository or, if a
Securities Depository Participant is not the beneficial owner,
then as reflected in the records of a Person maintaining an
account with such Securities Depository (directly or indirectly),
in accordance with the rules of such Securities Depository.
"Paying Agent" means any paying agent or co-paying
agent appointed pursuant to Section 5.09 and shall initially be
The Bank of New York.
"Payment Account" means a segregated non-interest-
bearing corporate trust account maintained by the Property
Trustee at The Bank of New York, or such other banking
institution as the Depositor shall select in its trust department
for the benefit of the Securityholders in which all amounts paid
in respect of the Debentures will be held and from which the
Paying Agent, pursuant to Section 5.09, shall make payments to
the Securityholders in accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation,
partnership, joint venture, trust, limited liability company or
corporation, unincorporated organization or government or any
agency or political subdivision thereof.
"Preferred Security" means a cumulative quarterly
income preferred security representing an undivided beneficial
interest in the assets of the Trust having a Liquidation Amount
of $25 and having rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a
certificate evidencing ownership of Preferred Securities,
substantially in the form attached as Exhibit D.
"Property Trustee" means the commercial bank or
trust company identified as the "Property Trustee" in the
preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust formed and continued hereunder and
not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Redemption Date" means, with respect to any Trust
Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Debenture
Redemption Date and Maturity (as defined in the Subordinated
Indenture as hereinafter defined) of the Debentures shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any
Redemption Date of any Trust Security, the Liquidation Amount of
such Trust Security, plus accumulated and unpaid Distributions
thereon to the Redemption Date and the related amount of the
premium, if any, paid by the Depositor upon the concurrent
redemption of a Like Amount of Debentures, allocated on a pro
rata basis (based on Liquidation Amount) among the Trust
Securities.
"Registrar" shall mean the registrar for the
Preferred Securities appointed by the Trust and shall be
initially The Bank of New York.
"Relevant Trustee" shall have the meaning
specified in Section 8.10.
"Responsible Officer," when used with respect to
the Property Trustee means an officer of the Property Trustee
assigned by the Property Trustee to administer its corporate
trust matters.
"Securities Depository" shall be The Depository
Trust Company, or a successor thereto.
"Securities Depository Participant" means an
institution which deposits securities with a Securities
Depository for holding thereby and for whom from time to time a
Securities Depository effects book-entry transfers and pledges of
such securities.
"Securities Register" shall mean the Securities
Register described in Section 5.04.
"Securityholder" or "Holder" means a Person in
whose name a Trust Security or Securities is registered in the
Securities Register; any such Person is a beneficial owner within
the meaning of the Delaware Business Trust Act.
"Special Event" means either a Tax Event or an
Investment Company Event.
"Subordinated Indenture" means the Indenture,
dated as of January 15, 1997, between the Depositor and the
Debenture Trustee, as trustee, as amended or supplemented from
time to time.
"Tax Event" means the receipt by the Trust or the
Depositor of an Opinion of Counsel experienced in such matters to
the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting
taxation, or as a result of any official administrative or
judicial pronouncement or decision interpreting or applying such
laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date
of original issuance of the Preferred Securities under this Trust
Agreement, there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject
to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by
the Depositor on the Debentures is not, or within 90 days of the
date thereof, will not be, deductible by the Depositor, in whole
or in part, for United States Federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Transfer Agent" shall mean one or more transfer
agents for the Preferred Securities appointed by the
Administrative Trustees on behalf of the Trust and shall be
initially The Bank of New York.
"Trust" means the Delaware business trust created
by the Original Trust Agreement and continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated
Trust Agreement, as the same may be modified, amended or
supplemented in accordance with the applicable provisions hereof,
including all exhibits hereto, including, for all purposes of
this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern
this Amended and Restated Trust Agreement and any such
modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture
Act of 1939 as in force at the date as of which this instrument
was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Debentures, (ii)
any cash on deposit in, or owing to, the Payment Account and
(iii) all proceeds and rights in respect of the foregoing and any
other property and assets for the time being held by the Property
Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common
Securities or the Preferred Securities.
"Trust Securities Certificate" means any one of
the Common Securities Certificates or the Preferred Securities
Certificates.
"Underwriting Agreement" means the Underwriting
Agreement, dated January 21, 1997, among the Trust, the Depositor
and the underwriters named therein.
ARTICLE I. Continuation of the Trust
II.1Section 1. Name. The Trust continued hereby shall be known
as "Entergy Gulf States Capital I", as such name may be modified
from time to time by the Administrative Trustees following
written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of
the Trust, make and execute contracts and other instruments on
behalf of the Trust and xxx and be sued.
II.1Section 2. Office of the Delaware Trustee; Principal Place
of Business. The office of the Delaware Trustee in the State of
Delaware is Xxxxx Xxxx Center, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
or at such other address in Delaware as the Delaware Trustee may
designate by written notice to the Securityholders and the
Depositor. The principal place of business of the Trust is c/o
Entergy Gulf States, Inc., 000 Xxxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxx 00000.
II.1Section 3. Initial Contribution of Trust Property;
Organizational Expenses. The Property Trustee acknowledges
receipt in trust from the Depositor in connection with the
Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses
paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
ARTICLE II.Section 1Section 4. Issuance of the
Preferred Securities. The Depositor, on behalf of the Trust,
executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Trust
Agreement, one of the Administrative Trustees, on behalf of the
Trust in accordance with Section 5.02 and the Underwriting
Agreement, shall execute manually (or by facsimile) and deliver a
Preferred Securities Certificate, registered in the name of the
nominee of the Securities Depository, in an aggregate amount of
3,400,000 Preferred Securities having an aggregate Liquidation
Amount of $85,000,000 against receipt of the aggregate purchase
price of such Preferred Securities of $85,000,000, which amount
such Administrative Trustee shall promptly deliver to the
Property Trustee.
ARTICLE II.Section 1Section 5. Subscription and Purchase of
Debentures; Issuance of the Common Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall (i) in
accordance with Section 5.02, execute manually (or by facsimile)
and deliver to the Depositor a Common Securities Certificate,
registered in the name of the Depositor, in an aggregate amount
of 105,155 Common Securities having an aggregate Liquidation
Amount of $2,628,875 against receipt of the aggregate purchase
price of such Common Securities of $2,628,875 from the Depositor,
which amount such Administrative Trustees shall promptly deliver
to the Property Trustee; and (ii) subscribe to and purchase from
the Depositor Debentures, registered in the name of the Property
Trustee, on behalf of the Trust, and having an aggregate
principal amount equal to $87,628,875, and shall cause the
Property Trustee to deliver to the Depositor the sum of
$87,628,875 representing the proceeds from the sale of the Trust
Securities.
ARTICLE II.Section 1Section 6. Declaration of Trust;
Appointment of Additional Administrative Trustees. The exclusive
purposes and functions of the Trust are (i) to issue and sell
Trust Securities and invest the proceeds thereof in Debentures,
and (ii) to engage in those activities necessary or incidental
thereto. The Depositor hereby appoints the Trustees as trustees
of the Trust, to have all the rights, powers and duties to the
extent set forth herein. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to
the conditions set forth herein for the benefit of the
Securityholders. The Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust.
Anything in this Trust Agreement to the contrary notwithstanding
the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware
Business Trust Act.
ARTICLE II.Section 1Section 7. Authorization to Enter into
Certain Transactions. (a) The Trustees shall conduct the affairs
of the Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b)
of this Section 2.07 and Article VIII and in accordance with the
following provisions (A) and (B), the Trustees shall have the
authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in
furtherance thereof, including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting
singly or jointly, shall have the power, duty and authority to
act on behalf of the Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities;
(ii) without the consent of any Person, to cause the Trust
to enter into and to execute, deliver and perform on behalf of
the Trust, the Expense Agreement, and such agreements or other
documents as may be necessary or desirable in connection with the
purposes and function of the Trust;
(iii) to qualify the Trust to do business in any jurisdiction
as may be necessary or desirable; provided, that no such
qualification may be made in any jurisdiction if the effect of
such qualification may be to diminish the limited liability of
the Holders of Preferred Securities as provided by this Trust
Agreement and the Delaware Business Trust Act;
(iv) to take all action that may be necessary or appropriate
for the preservation and continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory
business trust under the laws of the State of Delaware and of
each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders of Preferred
Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(v) the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or
blue sky laws, and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;
(vi) the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;
(vii) the appointments of a Paying Agent (subject to Section
5.09), a Transfer Agent and a Registrar in accordance with this
Trust Agreement;
(viii) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(ix) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(x) the taking of any action incidental to the foregoing as
the Administrative Trustees may from time to time determine is
necessary or advisable to protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of
the effect of any such action on any particular Securityholder);
and
(xi) the sending of notices (other than notices of default)
and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust
Agreement.
(B) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with
respect to the following ministerial matters:
(i) the establishment of the Payment Account;
(ii) the receipt of the Debentures;
(iii) the deposit of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
(iv) the distribution of amounts owed to the Securityholders
in respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(v) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust
Agreement;
(vi) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust; and
(viii) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine
is necessary or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
Subject to this Section 2.07(a)(B), the Property
Trustee shall have none of the duties, powers or authority of the
Administrative Trustees set forth in Section 2.07(a)(A) or the
Depositor set forth in Section 2.07(c). The Property Trustee
shall have the power and authority to exercise all of the rights,
powers and privileges of a holder of Debentures under the
Subordinated Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee may, for the benefit of Holders
of the Trust Securities, in its discretion proceed to protect and
enforce its rights as holder of the Debentures subject to the
rights of the Holders pursuant to the terms of this Trust
Agreement.
(b) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a "grantor trust" for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money, (v)
take or consent to any action that would result in the placement
of a Lien on any of the Trust Property or (vi) enter into any
contract or agreement for or on behalf of the Trust that does not
expressly provide that the Holders of the Preferred Securities,
in their capacities as such, have limited liability (in
accordance with the provisions of the Delaware Business Trust
Act) for the liabilities and obligations of the Trust, which
express provision may be in the following form: "The Holders of
the Preferred Securities, in their capacities as such, shall not
be personally liable for any liabilities or obligations of the
Trust arising out of this agreement, and the parties hereto
hereby agree that the Holders of the Preferred Securities, in
their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware." To the extent
required under this Trust Agreement and the Trust Indenture Act,
the Property Trustee shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders. The
Administrative Trustees shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interests of the Trust or the
Securityholders in their capacity as Securityholders to the
extent not required to be done by the Property Trustee in the
preceding sentence. All actions taken by the Administrative
Trustees on behalf of the Trust will be taken outside the State
of Texas.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility
to assist the Trust with respect to, or effect on behalf of the
Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution by the Trust of a registration
statement on Form S-3 in relation to the Preferred Securities,
the Debentures, the Guarantee and certain related obligations,
including any amendments thereto;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of
the Preferred Securities and the taking of any and all such acts,
other than actions which must be taken by or on behalf of the
Trust, and the advising of the Trustees of actions they must take
on behalf of the Trust, and the preparation for execution and
filing of any documents to be executed and filed by the Trust or
on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) the preparation for filing by the Trust and the
execution by the Trust of an application to the New York Stock
Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any
Preferred Securities and to file or cause the Administrative
Trustees to file thereafter with such exchange such notifications
and documents as may be necessary from time to time to maintain
such listing;
(iv) the preparation for filing by the Trust with the
Commission and the execution by the Trust of a registration
statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including
any amendments thereto;
(v) the selection of the investment banker or bankers to
act as underwriters with respect to the offer and sale by the
Trust of Preferred Securities and the negotiation of the terms of
and the execution and delivery of on behalf of the Trust the
Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof; and
(vi) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the
Trust will not be deemed to be an "investment company" required
to be registered under the Investment Company Act or classified
other than as a "grantor trust" for United States Federal income
tax purposes so that the Debentures will be treated as
indebtedness of the Depositor for United States Federal income
tax purposes. In this connection, subject to the provisions of
Section 10.03, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable
law, the certificate of trust filed with the Secretary of State
of the State of Delaware with respect to the Trust (as amended or
restated from time to time, the "Certificate of Trust") or this
Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not materially adversely affect the interests of the Holders
of the Preferred Securities.
ARTICLE II.Section 1Section 8. Assets of Trust. The assets
of the Trust shall consist of the Trust Property.
ARTICLE II.Section 1Section 9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in
the Property Trustee (in its capacity as such) and shall be held
and administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III. Payment Account
ARTICLE III.Section 1Section 1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and
the Paying Agent appointed by the Administrative Trustees shall
have exclusive control and sole right of withdrawal with respect
to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held
from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit
of the Holders of Trust Securities and for distribution as herein
provided, including (and subject to) any priority of payments
provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on,
and any other payments or proceeds with respect to, the
Debentures. Amounts held in the Payment Account shall not be
invested by the Property Trustee pending distribution thereof.
ARTICLE IV. Distributions; Redemption
ARTICLE IV.Section 1Section 1. Distributions.
(a) Distributions on the Trust Securities shall be cumulative,
and will accumulate whether or not there are funds of the Trust
available for the payment of Distributions. Distributions shall
accrue from the Closing Date, and, except in the event that the
Depositor exercises its right to extend the interest payment
period for the Debentures pursuant to Section 311 of the
Subordinated Indenture, shall be payable quarterly in arrears on
March 31, June 30, September 30 and December 31 of each year,
commencing on March 31, 1997. If any date on which Distributions
are otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the
next succeeding day 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, payment of such distribution shall be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date (each date on which
distributions are payable in accordance with this Section 4.01(a)
a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of 8.75% per annum of the Liquidation Amount of
the Trust Securities. The amount of Distributions payable for
any full quarterly period shall be computed on the basis of
twelve 30-day months and a 360-day year and for any period
shorter than a full month, on the basis of the actual number of
days elapsed. If the interest payment period for the Debentures
is extended pursuant to Section 311 of the Subordinated
Indenture, then Distributions on the Preferred Securities will be
deferred for the period equal to the extension of the interest
payment period for the Debentures and the rate per annum at which
Distributions on the Trust Securities accumulate shall be
increased by an amount such that the aggregate amount of
Distributions that accumulate on all Trust Securities during any
such extended interest payment period is equal to the aggregate
amount of interest (including, to the extent permitted by law,
interest payable on unpaid interest at the percentage rate per
annum set forth above, compounded quarterly) that accrues during
any such extended interest payment period on the Debentures. The
amount of Distributions payable for any period shall include the
Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Date only to the
extent that the Trust has funds then on hand and immediately
available in the Payment Account for the payment of such
Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities on the
relevant record date, which shall be one Business Day prior to
such Distribution Date; provided, however, that in the event that
the Preferred Securities do not remain in book-entry only form,
the relevant record date shall be 15 days prior to the relevant
Distribution Date.
ARTICLE IV.Section 1Section 2. Redemption.
(a) On each Debenture Redemption Date and at Maturity for the
Debentures, the Property Trustee will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to
each Holder of Trust Securities to be redeemed, at such Holder's
address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be
redeemed and that interest thereon will cease to accrue on and
after said date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from
the contemporaneous redemption of Debentures. Redemptions of the
Trust Securities shall be made and the Redemption Price shall be
deemed payable on each Redemption Date only to the extent that
the Trust has funds immediately available in the Payment Account
for such payment.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New
York time, on the Redemption Date, subject to Section 4.02(c),
the Property Trustee will, so long as the Preferred Securities
are in book-entry only form, deposit irrevocably with the
Securities Depository for the Preferred Securities funds
sufficient to pay the applicable Redemption Price and will give
such Securities Depository irrevocable instructions and authority
to pay the applicable Redemption Price to the holders thereof.
If the Preferred Securities are no longer in book-entry only
form, the Property Trustee, subject to Section 4.02(c), will
deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption
Price to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing,
Distributions payable on or prior to the redemption date for any
Trust Securities called for redemption shall be payable to the
Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption
shall have been given and funds deposited as required, then on
the Redemption Date, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right
of such Securityholders to receive the Redemption Price, but
without interest thereon, and such Trust Securities will cease to
be outstanding. In the event that any Redemption Date is not a
Business Day, then payment of the Redemption Price payable on
such date shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day
falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities
will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such
Trust Securities to the date such Redemption Price is actually
paid, in which case the actual payment date will be deemed the
date fixed for redemption for purposes of calculating the
Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities
and any distribution of Debentures to the Holders shall be made
to the Holders as they appear on the Securities Register for the
Trust Securities on the relevant record date, which shall be one
Business Day prior to such Redemption Date; provided, however,
that in the event that the Preferred Securities do not remain in
book-entry only form, the relevant record date shall be the
fifteenth day prior to the relevant Redemption Date.
(f) Subject to Section 4.03(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities
to be redeemed shall be allocated 3% to the Common Securities and
97% to the Preferred Securities. The particular Preferred
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem
fair and appropriate and which may provide for the selection for
a redemption of portions (equal to $25 or integral multiples
thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $25. The Property Trustee shall
promptly notify the Transfer Agent and Registrar in writing of
the Preferred Securities selected for redemption and, in the case
of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or
to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be
redeemed.
ARTICLE IV.Section 1Section 3. Subordination of Common
Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price plus accumulated and
unpaid distributions of, the Trust Securities, as applicable,
shall be made pro rata based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date any Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing,
no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default
resulting from a Debenture Event of Default, the Holder of Common
Securities will be deemed to have waived any such Event of
Default under this Trust Agreement until the effect of all such
Events of Default with respect to the Preferred Securities shall
have been cured, waived or otherwise eliminated. Until any such
Events of Default under this Trust Agreement with respect to the
Preferred Securities shall have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not the
Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
ARTICLE IV.Section 1Section 4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if
applicable) in respect of the Preferred Securities shall be made
by check mailed to the address of the Person entitled thereto as
such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository, which
shall credit the relevant Persons' accounts at such Securities
Depository on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the
Holder of the Common Securities.
ARTICLE IV.Section 1Section 5. Tax Returns and Reports. The
Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense and direction, and file all United
States Federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In
this regard, the Administrative Trustees shall (a) prepare and
file (or cause to be prepared and filed) the Internal Revenue
Service Form 1041 (or any successor form) required to be filed in
respect of the Trust in each taxable year of the Trust and (b)
prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the related Internal Revenue Service Form
1099, or any successor form or the information required to be
provided on such form. The Administrative Trustees shall provide
the Depositor with a copy of all such returns and reports
promptly after such filing or furnishing. The Property Trustee
shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust
Securities.
ARTICLE IV.Section 1Section 6. Payment of Taxes, Duties,
Etc. of the Trust. Upon receipt under the Debentures of
Additional Interest (as defined in the Subordinated Indenture),
the Property Trustee at the direction of an Administrative
Trustee or the Depositor shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trustee by the United States or any other
taxing authority.
ARTICLE IV.Section 1Section 7. Payments under Subordinated
Indenture. Any amount payable hereunder to any Holder of
Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder has directly received pursuant
to Section 808 of the Subordinated Indenture. Notwithstanding
the provisions hereunder to the contrary, Securityholders
acknowledge that any Holder of Preferred Securities that receives
payment under Section 808 of the Subordinated Indenture may
receive amounts greater than the amount such Holder may be
entitled to receive pursuant to the other provisions of this
Trust Agreement.
ARTICLE V. Trust Securities Certificates
ARTICLE V.Section 1Section 1. Initial Ownership. Upon the
creation of the Trust and the contribution by the Depositor
pursuant to Section 2.03 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
ARTICLE V.Section 1Section 2. The Trust Securities
Certificates. The Trust Securities Certificates shall be issued
in denominations of $25 Liquidation Amount and integral multiples
thereof. Subject to Section 2.04 relating to the original
issuance of the Preferred Securities Certificate registered in
the name of the nominee of the Securities Depository, the Trust
Securities Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of at least one Administrative
Trustee and, if executed on behalf of the Trust by facsimile
signature, countersigned by a Transfer Agent or its agent. Trust
Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust and, if
executed on behalf of the Trust by facsimile signature,
countersigned by a Transfer Agent or its agent, shall be validly
issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date
of delivery of such Trust Securities Certificates. A transferee
of a Trust Securities Certificate shall become a Securityholder,
and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration
of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.04, 5.11 or 5.13.
ARTICLE V.Section 1Section 3. Execution and Delivery of Trust
Securities Certificates. On the Closing Date, the Administrative
Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 2.04 and
2.05, to be executed on behalf of the Trust by at least one of
the Administrative Trustees, and in the case of Trust Securities
Certificates executed by facsimile signature, countersigned by a
Transfer Agent or its agent, and delivered to or upon the written
order of the Depositor signed by its chairman of the board, any
of its vice presidents or its Treasurer, without further
corporate action by the Depositor, in authorized denominations.
The Depositor agrees to indemnify, defend and hold each Transfer
Agent harmless against any and all costs and liabilities incurred
without negligence arising out of or in connection with any such
countersigning by it.
ARTICLE V.Section 1Section 4. Registration of Transfer and
Exchange of Preferred Securities Certificates. The Registrar
shall keep or cause to be kept, at its principal corporate
office, a Securities Register in which, subject to such
reasonable regulations as it may prescribe, the Registrar shall
provide for the registration of Preferred Securities Certificates
and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided.
Upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency
maintained pursuant to Section 5.08, the Administrative Trustees,
or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature and, if executed on behalf of the
Trust by facsimile signature, cause a Transfer Agent or its agent
to countersign and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount. At the option of a Holder, Preferred
Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender
of the Preferred Securities Certificates to be exchanged at the
office or agency maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented
or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and a Transfer Agent
duly executed by the Holder or such Holder's attorney duly
authorized in writing. Each Preferred Securities Certificate
surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Administrative
Trustees in accordance with customary practice. The Trust shall
not be required to (i) issue, register the transfer of, or
exchange any Preferred Securities during a period beginning at
the opening of business 15 calendar days before the day of
mailing of a notice of redemption of any Preferred Securities
called for redemption and ending at the close of business on the
day of such mailing or (ii) register the transfer of or exchange
any Preferred Securities so selected for redemption, in whole or
in part, except the unredeemed portion of any such Preferred
Securities being redeemed in part.
No service charge shall be made for any
registration of transfer or exchange of Preferred Securities
Certificates, but a Transfer Agent may require payment of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
ARTICLE V.Section 1Section 5. Mutilated, Destroyed, Lost or
Stolen Trust Securities Certificates. If (a) any mutilated Trust
Securities Certificate shall be surrendered to a Transfer Agent,
or if a Transfer Agent shall receive evidence to its satisfaction
of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Transfer
Agent and the Administrative Trustees such security or indemnity
as may be required by them to save each of them and the Depositor
harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on
behalf of the Trust, shall execute by manual or facsimile
signature and, if executed on behalf of the Trust by facsimile
signature, cause a Transfer Agent or its agent to countersign and
deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section 5.05, the
Administrative Trustees or the Transfer Agent may require the
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section 5.05 shall constitute conclusive evidence of an
ownership interest in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate
shall be found at any time.
ARTICLE V.Section 1Section 6. Persons Deemed Securityholders.
Prior to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees, the Paying Agent and the
Registrar shall be entitled to treat the Person in whose name any
Trust Securities Certificate shall be registered in the
Securities Register as the owner of such Trust Securities
Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and neither the Trustees nor the
Registrar shall be bound by any notice to the contrary.
ARTICLE V.Section 1Section 7. Access to List of
Securityholders' Names and Addresses. The Administrative
Trustees shall furnish or cause to be furnished (x) to the
Depositor, within 15 days after receipt by any Administrative
Trustee of a request therefor from the Depositor in writing and
(y) to the Property Trustee, promptly after receipt by any
Administrative Trustee of a request therefor from the Property
Trustee in writing in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, a list, in
such form as the Depositor or the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of
the most recent record date. If Holders of Trust Securities
Certificates evidencing ownership at such time and for the
previous six months not less than 25% of the outstanding
aggregate Liquidation Amount apply in writing to any
Administrative Trustee, and such application states that the
applicants desire to communicate with other Securityholders with
respect to their rights under this Trust Agreement or under the
Trust Securities Certificates and such application is accompanied
by a copy of the communication that such applicants propose to
transmit, then the Administrative Trustees shall, within five
Business Days after the receipt of such application, afford such
applicants access during normal business hours to the current
list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not
to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
ARTICLE V.Section 1Section 8. Maintenance of Office or Agency.
The Depositor shall or shall cause the Transfer Agent to maintain
in the Borough of Manhattan, The City of New York, an office or
offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Depositor
or the Transfer Agent in respect of the Trust Securities
Certificates may be served. The Depositor initially designates
The Bank of New York at its principal corporate trust office for
such purposes. The Depositor shall or shall cause the Transfer
Agent to give prompt written notice to the Property Trustee and
to the Securityholders of any change in any such office or
agency.
ARTICLE V.Section 1Section 9. Appointment of Paying Agent. The
Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such
Distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making
the Distributions referred to above. The Property Trustee shall
be entitled to rely upon a certificate of the Paying Agent
stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance
with this Section 5.09. The Administrative Trustees or any one
of them may revoke such power and remove the Paying Agent in its
sole discretion. The Paying Agent may choose any co-paying agent
that is acceptable to the Administrative Trustees and the
Depositor. The Paying Agent shall be permitted to resign upon 30
days' written notice to the Administrative Trustees and the
Depositor. In the event of the removal or resignation of the
Paying Agent, the Administrative Trustees shall appoint a
successor that is reasonably acceptable to the Property Trustee
and the Depositor to act as Paying Agent (which shall be a bank,
trust company or an Affiliate of the Depositor). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon resignation or removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06
shall apply to the Paying Agent appointed hereunder, and the
Paying Agent shall be bound by the requirements with respect to
paying agents of securities issued pursuant to the Trust
Indenture Act. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
ARTICLE V.Section 2 0. Ownership of Common Securities by
Depositor; Common Securities Certificate. On the Closing Date,
the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Securities. Any attempted
transfer of the Common Securities (other than a transfer in
connection with a merger or consolidation of the Depositor into
another corporation pursuant to Section 1101 of the Subordinated
Indenture) shall be void. The Administrative Trustees shall
cause each Common Securities Certificate issued to the Depositor
to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE". A single Common Securities Certificate
representing the Common Securities shall be issued to the
Depositor in the form of a definitive Common Securities
Certificate.
ARTICLE V.Section 2Section 1. Book-Entry Preferred Securities
Certificates. The Preferred Securities Certificates, upon
original issuance, will be issued in the form of a typewritten
Preferred Securities Certificate or Certificates representing
Book-Entry Preferred Securities Certificates, to be delivered to
or held on behalf of The Depository Trust Company, the initial
Securities Depository, by, or on behalf of, the Trust. Such Book-
Entry Preferred Securities Certificate or Certificates shall
initially be registered on the Securities Register in the name of
Cede & Co., the nominee of the initial Securities Depository, and
no beneficial owner will receive a Definitive Preferred
Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to beneficial owners pursuant to
Section 5.13:
(a) the provisions of this Section 5.11 shall be
in full force and effect;
(b) the Registrar, the Paying Agent and the
Trustees shall be entitled to deal with the Securities Depository
for all purposes of this Trust Agreement relating to the Book-
Entry Preferred Securities Certificates (including the payment of
the Liquidation Amount of and Distributions on the Book-Entry
Preferred Securities) as the sole Holder of the Book-Entry
Preferred Securities and shall have no obligations to the Owners
thereof;
(c) to the extent that the provisions of this
Section 5.11 conflict with any other provisions of this Trust
Agreement, the provisions of this Section 5.11 shall control; and
(d) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only through
the Securities Depository and shall be limited to those
established by law and agreements between such Owners and the
Securities Depository and/or the Securities Depository
Participants. Pursuant to the Certificate Depository Agreement,
unless and until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the initial Securities
Depository will make book-entry transfers among the Securities
Depository Participants and receive and transmit payments on the
Preferred Securities to such Securities Depository. Any
Securities Depository designated pursuant hereto will not be
deemed an agent of the Trustees for any purpose.
ARTICLE V.Section 2Section 2. Notices to Securities Depository.
To the extent that a notice or other communication to the Owners
is required under this Trust Agreement, unless and until
Definitive Preferred Securities Certificates shall have been
issued pursuant to Section 5.13, the Trustees shall give all such
notices and communications specified herein to be given to Owners
to the Securities Depository, and shall have no obligations to
the Owners.
ARTICLE V.Section 2Section 3. Definitive Preferred Securities
Certificates. If (a) the Depositor advises the Trustees in
writing that the Securities Depository is no longer willing or
able to properly discharge its responsibilities with respect to
the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its
option advises the Trustees in writing that it elects to
terminate the book-entry system through the Securities
Depository, or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing
beneficial interests aggregating at least a majority of the
Liquidation Amount advise the Property Trustee in writing that
the continuation of a book-entry system through the Securities
Depository is no longer in the best interests of the Owners of
Preferred Securities Certificates, then the Property Trustee
shall notify the Securities Depository, and the Securities
Depository shall notify all Owners of Preferred Securities
Certificates, of the occurrence of any such event and of the
availability of the Definitive Preferred Securities Certificates
to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Property Trustee of the typewritten
Preferred Securities Certificate or Certificates representing the
Book-Entry Preferred Securities Certificates by the Securities
Depository, accompanied by registration instructions, the
Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with
the instructions of the Securities Depository. Neither the
Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the
Trustees shall recognize the Holders of the Definitive Preferred
Securities Certificates as Securityholders. The Definitive
Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof in accordance with Section
5.02.
ARTICLE V.Section 2Section 4. Rights of Securityholders. The
legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with
Section 2.09, and the Securityholders shall not have any right or
title therein other than an undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust
Agreement. The Preferred Securities shall have no preemptive or
similar rights and when issued and delivered to Preferred
Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable interests in the Trust.
ARTICLE VI. Acts of Securityholders; Meetings; Voting
ARTICLE VI.Section 1Section 1. Limitations on Voting
Rights.
(a) Except as provided in this Section 6.01, in Section 10.03
and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an
association. If the Property Trustee fails to enforce its rights
under the Debentures or this Trust Agreement, a Holder of
Preferred Securities may institute a legal proceeding directly
against the Depositor to enforce the Property Trustee's rights
under the Debentures or this Trust Agreement, to the fullest
extent permitted by law, without first instituting any legal
proceeding against the Property Trustee or any other person.
Notwithstanding the foregoing, to the fullest extent permitted by
law, a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder directly of
principal of or interest on the Debentures having a principal
amount equal to the aggregate liquidation preference amount of
the Preferred Securities of such Holder on or after the due dates
specified in the Debentures. So long as any Preferred Securities
remain Outstanding, if, upon a Debenture Event of Default, the
Debenture Trustee fails or the holders of not less than 33% in
principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and
payable, the Holders of at least 33% in Liquidation Amount of the
Preferred Securities then Outstanding shall have such right by a
notice in writing to the Depositor and the Debenture Trustee; and
upon any such declaration such principal amount of and the
accrued interest on all of the Debentures shall become
immediately due and payable, provided that the payment of
principal and interest on such Debentures shall remain
subordinated to the extent provided in the Subordinated
Indenture.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on the Debenture Trustee with respect to such Debentures, (ii)
waive any past default which is waivable under Section 813 of the
Subordinated Indenture, (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures
shall be due and payable or (iv) consent to any amendment,
modification or termination of the Subordinated Indenture or the
Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a
majority of the aggregate Liquidation Amount of the Outstanding
Preferred Securities; provided, however, that where a consent
under the Subordinated Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by any Trustee without the prior written consent of each
holder of Preferred Securities. The Trustees shall not revoke
any action previously authorized or approved by a vote of the
Preferred Securities, except pursuant to a subsequent vote of the
Preferred Securities. The Property Trustee shall notify all
Holders of the Preferred Securities of any notice of default
received from the Debenture Trustee with respect to the
Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of
the foregoing actions, the Property Trustee shall, at the expense
of the Depositor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust will be classified as a
"grantor trust" and not as an association taxable as a
corporation for United States Federal income tax purposes on
account of such action.
(c) Subject to Section 10.03(c), if any proposed amendment to
the Trust Agreement provides for, or the Trustees otherwise
propose to effect, (i) any action that would materially adversely
affect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities
as a class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with
the approval of the Holders of a majority in Liquidation Amount
of the Outstanding Preferred Securities. No amendment to this
Trust Agreement may be made if, as a result of such amendment,
the Trust would not be classified as a "grantor trust" but as an
association taxable as a corporation for United States Federal
income tax purposes.
ARTICLE VI.Section 1Section 2. Notice of Meetings. Notice
of all meetings of the Holders of Preferred Securities, stating
the time, place and purpose of the meeting, shall be given by the
Property Trustee pursuant to Section 10.08 to each Holder of a
Preferred Security, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such
meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
ARTICLE VI.Section 1Section 3. Meetings of Holders of
Preferred Securities. No annual meeting of Securityholders is
required to be held. The Administrative Trustees, however, shall
call a meeting of Preferred Securityholders to vote on any matter
upon the written request of the Holders of 25% of the then
Outstanding Preferred Securities (based upon their aggregate
Liquidation Amount) and may, at any time in their discretion,
call a meeting of Holders of Preferred Securities to vote on any
matters as to which the Holders of Preferred Securities are
entitled to vote.
Holders of 50% of the then Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount),
present in person or by proxy, shall constitute a quorum at any
meeting of Preferred Securityholders.
If a quorum is present at a meeting, an
affirmative vote by the Holders of Preferred Securities present,
in person or by proxy, holding more than the lesser of (x) 66
2/3% of the then Outstanding Preferred Securities (based upon
their aggregate Liquidation Amount) held by the Holders of then
Outstanding Preferred Securities present, either in person or by
proxy, at such meeting and (y) 50% of the Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount) shall
constitute the action of the Securityholders, unless this Trust
Agreement requires a greater number of affirmative votes.
ARTICLE VI.Section 1Section 4. Voting Rights.
Securityholders shall be entitled to one vote for each $25 of
Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are
entitled to vote.
ARTICLE VI.Section 1Section 5. Proxies, etc. At any
meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted
at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for
verification prior to the time at which such vote shall be taken.
Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of
them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of
a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, or, if earlier, until eleven months after
it is sent and the burden of proving invalidity shall rest on the
challenger.
ARTICLE VI.Section 1Section 6. Securityholder Action by
Written Consent. Any action which may be taken by
Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than a majority of all Outstanding
Trust Securities entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the
action in writing (based upon their aggregate Liquidation
Amount).
ARTICLE VI.Section 1Section 7. Record Date for Voting and
Other Purposes. For the purposes of determining the
Securityholders who are entitled to notice of and to vote at any
meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record
date is not otherwise provided for in this Trust Agreement, or
for the purpose of any other action, the Administrative Trustees
may from time to time fix a date, not more than 90 days prior to
the date of any meeting of Securityholders or the payment of
Distribution or other action, as the case may be, as a record
date for the determination of the identity of the Securityholders
of record for such purposes.
ARTICLE VI.Section 1Section 8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust
Agreement to be given, made or taken by Securityholders may be
embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in
person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in
the manner provided in this Section 6.08.
The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit
of a witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner which any
Trustee deems sufficient.
The ownership of Preferred Securities shall be
proved by the Securities Register.
Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Securityholder of any
Trust Security shall bind every future Securityholder of the same
Trust Security and the Securityholder of every Trust Security
issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder
entitled hereunder to take any action hereunder with regard to
any particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between or among the
Securityholders and the Administrative Trustees with respect to
the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of
such Securityholder or Trustee under this Article VI, then the
determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
ARTICLE VI.Section 1Section 9. Inspection of Records.
Subject to Section 5.07 concerning access to the list of
Securityholders, upon reasonable notice to the Administrative
Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by Securityholders during normal
business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII. Representations and Warranties of the Property
Trustee, the Delaware Trustee
and the Depositor
ARTICLE VII.Section 1Section 1. Property Trustee. The
Property Trustee hereby represents and warrants for the benefit
of the Depositor and the Securityholders that:
(a) the Property Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing
under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations
under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Property Trustee and constitutes the valid
and legally binding agreement of the Property Trustee enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement will not violate, conflict with
or constitute a breach of the Property Trustee's charter or by-
laws; and
(e) neither the authorization, execution or delivery by the
Property Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee contemplated
herein require the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or New York law governing the banking or trust
powers of the Property Trustee.
ARTICLE VII.Section 1Section 2. Delaware Trustee. The
Delaware Trustee hereby represents and warrants for the benefit
of the Depositor and the Securityholders that:
(a) the Delaware Trustee is a banking corporation or trust
company duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power, authority
and legal right to execute, deliver and perform its obligations
under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this
Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by the Delaware Trustee and constitutes the valid
and legally binding agreement of the Delaware Trustee enforceable
against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate, conflict with
or constitute a breach of the Delaware Trustee's charter or by-
laws; and
(e) neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Delaware Trustee contemplated
herein require the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with
respect to any governmental authority or agency under any
existing Federal or Delaware law governing the banking or trust
powers of the Delaware Trustee.
ARTICLE VII.Section 1Section 3. Depositor.
The Depositor hereby represents and warrants for
the benefit of the Securityholders that:
(a) the Trust Securities Certificates issued on
the Closing Date on behalf of the Trust have been duly authorized
and will have been duly and validly executed, issued and
delivered by the Administrative Trustees pursuant to the terms
and provisions of, and in accordance with the requirements of,
this Trust Agreement and the Securityholders will be, as of such
date, entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental
charges payable by the Trust (or the Trustees) under the laws of
the State of Delaware or any political subdivision thereof in
connection with the execution, delivery and performance by the
Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII. The Trustees
ARTICLE VIII.Section 1Section 1. Certain Duties and
Responsibilities.
(a) The duties and responsibilities of the Trustees shall be
as provided by this Trust Agreement and, in the case of the
Property Trustee, the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Trust Agreement
against any of the Trustees. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require any of the
Trustees to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. Notwithstanding anything
contained in this Trust Agreement to the contrary, the duties and
responsibilities of the Property Trustee under this Trust
Agreement shall be subject to the protections, exculpations and
limitations on liability afforded to the Property Trustee under
the provisions of the Trust Indenture Act and, to the extent
applicable, Rule 3A-7 under the Investment Company Act or any
successor rule thereunder. Whether or not therein expressly so
provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Section
8.01.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from
the income and proceeds from the Trust Property and only to the
extent that there shall be sufficient income or proceeds from the
Trust Property to enable the Property Trustee or Paying Agent to
make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees
that it will look solely to the income and proceeds from the
Trust Property to the extent available for distribution to it as
herein provided and that the Trustees are not personally liable
to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust
Security. This Section 8.01(b) does not limit the liability of
the Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.
(c) All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
(i) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust
Property 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 Trust Agreement, the
Trust Indenture Act and, to the extent applicable, Rule 3a-7
under the Investment Company Act;
(ii) the Property Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Trust Property or the payment of any taxes or
assessments levied thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor. Money held by the Property Trustee
need not be segregated from other funds held by it except in
relation to the Payment Account established by the Property
Trustee pursuant to this Trust Agreement and except to the extent
otherwise required by law; and
(iv) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrative Trustees or the
Depositor.
ARTICLE VIII.Section 1Section 2. Certain Notices.
(a) Within five Business Days after the occurrence of
any Event of Default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided
in Section 10.08, notice of any Event of Default to the
Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
(b) Within five Business Days after receipt of notice
of the Depositor's exercise of its right to defer the payment of
interest on the Debentures pursuant to the Subordinated
Indenture, an Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of
such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
ARTICLE VIII.Section 1Section 3. Certain Rights of Property
Trustee. Subject to the provisions of Section 8.01 and except as
provided by law:
(i) the Property Trustee may conclusively rely and shall be
protected in acting or refraining from acting in good faith upon
any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of auditors
or any other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between
alternative courses of action or (B) in construing any of the
provisions in this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with any other provisions
contained herein or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred Securityholders
are entitled to vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a written notice to the Depositor
requesting written instructions of the Depositor as to the course
of action to be taken. The Property Trustee shall take such
action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain
from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the
Depositor within ten Business Days after it has delivered such
notice, or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not be less
than two Business Days), it may, but shall be under no duty to,
take or refrain from taking such action not inconsistent with
this Trust Agreement as it shall deem advisable and in the best
interests of the Securityholders, in which event the Property
Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(iii) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omitting any
action hereunder, the Property Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith
on its part, request and rely conclusively upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative
Trustees;
(iv) the Property Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon;
(v) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
(including reasonable attorneys' fees and expenses) and
liabilities which might be incurred by it in complying with such
request or direction;
(vi) 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, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine, unless requested in
writing to do so by one or more Securityholders, 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 to examine the
books, records and premises of the Depositor personally or by
agent or attorney;
(vii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through its agents or attorneys, and the Property
Trustee shall not be responsible for any misconduct or negligence
on the part of any agent or attorney appointed with due care by
it hereunder, provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect
to selection of any agent or attorney appointed by it hereunder;
(viii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Trust
Agreement;
(ix) the Property Trustee shall not be charged with
knowledge of any default or Event of Default with respect to the
Trust Securities unless either (1) a Responsible Officer of the
Property Trustee shall have actual knowledge of the default or
Event of Default or (2) written notice of such default or Event
of Default shall have been given to the Property Trustee by the
Depositor, the Administrative Trustees or by any Holder of the
Trust Securities;
(x) no provision of this Trust Agreement 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; and no permissive or discretionary power or authority
available to the Property Trustee shall be construed to be a
duty;
(xi) no provision of this Trust Agreement 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
the Property Trustee 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 Trust Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it;
(xii) 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 tax or securities)
(or any rerecording, refiling or registration thereof);
(xiii) the Property Trustee shall have the right at any time
to seek instructions concerning the administration of this Trust
Agreement from any court of competent jurisdiction; and
(xiv) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder the Property Trustee (i) may
request instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of the same
proportion of Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of
this Trust Agreement in respect of such remedies, rights or
actions, (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.
ARTICLE VIII.Section 1Section 4. Not Responsible for Recitals
or Issuance of Securities. The recitals contained herein and in
the Trust Securities Certificates shall be taken as the
statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of
the Trust or any part thereof or as to the title of the Trust
thereto or as to the security afforded thereby or hereby, or as
to the validity or genuineness of any securities at any time
pledged and deposited with any Trustees hereunder, nor as to the
validity or sufficiency of this Trust Agreement or the Trust
Securities. The Trustees shall not be accountable for the use or
application by the Trust of the proceeds of the Trust Securities
in accordance with Section 2.05.
ARTICLE VIII.Section 1Section 5. May Hold Securities. Any
Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee
of Trust Securities and, except as provided in the definition of
the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee
or such other agent.
ARTICLE VIII.Section 1Section 6. Compensation; Fees;
Indemnity.
(a) The Depositor agrees
(i) to pay to the Property Trustee and the
Delaware Trustee from time to time reasonable compensation for
services rendered by the Property Trustee and the Delaware
Trustee hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(ii) except as otherwise expressly provided
herein, to reimburse the Property Trustee and the Delaware
Trustee upon request for all reasonable expenses, disbursements
and advances reasonably incurred or made by the Property Trustee
and the Delaware Trustee in accordance with any provision of this
Trust Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to
its negligence, bad faith or willful misconduct; and
(iii) to indemnify the Property Trustee and the
Delaware Trustee for, and to hold the Property Trustee and the
Delaware Trustee harmless against, any and all loss, damage,
claims, liability or expense incurred without negligence, bad
faith or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of this Trust
Agreement, including the reasonable costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
(b) The Trust agrees to indemnify each
Administrative Trustee for, and to hold each Administrative
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without gross negligence, bad faith
or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of this Trust
Agreement, including the reasonable costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
As security for the performance of the obligations
of the Depositor and the Trust under this Section 8.06, each of
the Trustees shall have a lien prior to the Trust Securities upon
all property and funds held or collected by such Trustee as such,
except funds held in trust for the payment of Distributions on
the Trust Securities.
The provisions of this Section 8.06 shall survive
the termination of this Trust Agreement.
ARTICLE VIII.Section 1Section 7. Certain Trustees Required;
Eligibility.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall
be a Person that has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this
Section 8.07(a), the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the
provisions of this Section 8.07(a), it shall resign immediately
in the manner and with the effect hereinafter specified in this
Article VIII.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
with its principal place of business in the State of Delaware
that otherwise meets the requirements of applicable Delaware law
and that shall act through one or more persons authorized to bind
such entity.
ARTICLE VIII.Section 1Section 8. Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this Trust
Agreement. The Subordinated Indenture and the Guarantee
Agreement shall be deemed to be specifically described in this
Trust Agreement for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE VIII.Section 1Section 9. Co-Trustees and Separate
Trustee.
Unless an Event of Default shall have occurred and
be continuing, at any time or times, for the purpose of meeting
the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Property Trustee shall
have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery, and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section 8.09. If the Depositor does not
join in such appointment within 15 days after the receipt by it
of a request so to do, or in case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
Should any written instrument from the Depositor
be required by any co-trustee or separate trustee so appointed
for more fully confirming to such co-trustee or separate trustee
such property, title, right, or power, any and all such
instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed
subject to the following terms, namely:
(1) The Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged
with, the Trustees designated for such purpose hereunder, shall
be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations
hereby conferred or imposed upon the Property Trustee in respect
of any property covered by such appointment shall be conferred or
imposed upon and exercised or performed by the Property Trustee
or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an
instrument in writing executed by it, with the written
concurrence of the Depositor, may accept the resignation of or
remove any co-trustee or separate trustee appointed under this
Section 8.09, and, in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee shall have power
to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Depositor. Upon
the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper
to effectuate such resignation or removal. A successor to any co-
trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section 8.09.
(4) No co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or omission of
the Trustee, or any other such trustee hereunder.
(5) The Property Trustee shall not be liable by
reason of any act of a co-trustee or separate trustee.
(6) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such co-
trustee and separate trustee.
ARTICLE VIII.Section 2 0. Resignation and Removal; Appointment
of Successor. No resignation or removal of any Trustee (as the
case may be, the "Relevant Trustee") and no appointment of a
successor Relevant Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor
Relevant Trustee in accordance with the applicable requirements
of Section 8.11.
Subject to the immediately preceding paragraph,
the Relevant Trustee may resign at any time by giving written
notice thereof to the Securityholders. If the instrument of
acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
An Administrative Trustee may be removed by the
Holder of Common Securities at any time. Unless a Debenture
Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee may be removed at any
time by Act of the Common Securityholder. If a Debenture Event
of Default shall have occurred and be continuing, the Relevant
Trustee may be removed at such time by Act of the Securityholders
of a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed
or become incapable of continuing to act as Relevant Trustee at a
time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or
Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Relevant Trustee at a time when a
Debenture Event of Default shall have occurred and be continuing,
the Preferred Securityholders, by Act of the Preferred
Securityholders of a majority in Liquidation Amount of the
Outstanding Preferred Securities delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and the Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common
Securityholders or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of
each resignation and each removal of the Relevant Trustee and
each appointment of a successor Trustee to all Securityholders in
the manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name and address of the
successor Relevant Trustee and, in the case of the Property
Trustee, the address of its Corporate Trust Office.
Notwithstanding the foregoing or any other
provision of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a natural
person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled
by (i) the unanimous act of remaining Administrative Trustees if
there are at least two of them or (ii) otherwise by the Depositor
(with the successor in each case being an individual who
satisfies the eligibility requirements for Administrative
Trustees or Delaware Trustee, as the case may be, set forth in
Section 8.07). Additionally, notwithstanding the foregoing or
any other provision of this Trust Agreement, in the event the
Depositor reasonably believes that any Administrative Trustee who
is a natural person has become incompetent or incapacitated, the
Depositor, by notice to the remaining Trustees, may terminate the
status of such Person as an Administrative Trustee (in which case
the vacancy so created will be filled in accordance with the
preceding sentence).
ARTICLE VIII.Section 2Section 1. Acceptance of Appointment by
Successor. In case of the appointment hereunder of a successor
Relevant Trustee, the retiring Relevant Trustee and each
successor Trustee shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such
appointment and which (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest
in, each successor Relevant Trustee all the rights, powers,
trusts and duties of the retiring Relevant Trustee with respect
to the Trust Securities and the Trust and (2) shall add to or
change any of the provisions of this Trust Agreement as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees of the same trust
and that each such Relevant Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Relevant Trustee and
upon the execution and delivery of such amendment the resignation
or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor
Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the
Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor
Trustee all Trust Property, all proceeds thereof and money held
by such retiring Relevant Trustee hereunder with respect to the
Trust Securities and the Trust.
Upon request of any such successor Relevant
Trustee, the retiring Relevant Trustee shall execute any and all
instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights,
powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor
Relevant Trustee shall be qualified and eligible under this
Article VIII.
ARTICLE VIII.Section 2Section 2. Merger, Conversion,
Consolidation or Succession to Business. Any Person into which
the Property Trustee or the Delaware Trustee or any
Administrative Trustee or any Trustee that is not a natural
person may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion
or consolidation to which such Relevant Trustee shall be a party,
or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the
successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article VIII, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
ARTICLE VIII.Section 2Section 3. Preferential Collection of
Claims Against Depositor or Trust. If and when the Property
Trustee shall be or become a creditor of the Depositor or the
Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other
obligor).
ARTICLE VIII.Section 2Section 4. Reports by Property Trustee.
(a) The Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided
pursuant thereto. Such of those reports as are required to be
transmitted by the Property Trustee pursuant to Section 313(a) of
the Trust Indenture Act shall be so transmitted within 60 days
after June 30 of each year, commencing June 30, 1997.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with
each stock exchange upon which the Trust Securities are listed,
with the Commission and with the Depositor. The Depositor will
notify the Property Trustee when any Trust Securities are listed
on any stock exchange.
ARTICLE VIII.Section 2Section 5. Reports to the Property
Trustee. The Depositor and the Administrative Trustees on behalf
of the Trust shall provide to the Property Trustee such
documents, reports and information as required by Section 314 (if
any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
ARTICLE VIII.Section 2Section 6. Evidence of Compliance With
Conditions Precedent. Each of the Depositor and the
Administrative Trustees on behalf of the Trust shall provide to
the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust
Agreement (including any covenants compliance with which
constitutes a condition precedent) 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.
ARTICLE VIII.Section 2Section 7. Number of Trustees.
(a) The number of Trustees shall be five, provided that the
Depositor, by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the
Delaware Trustee may be the same person.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee
shall not operate to dissolve, terminate or annul the Trust.
Whenever a vacancy in the number of Administrative Trustees shall
occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number
(and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees
and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
ARTICLE VIII.Section 2Section 8. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.07(a),
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate
from time to time to such of their number the doing of such
things and the execution of such instruments either in the name
of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
ARTICLE VIII.Section 2Section 9. 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 Trust Agreement shall not be
liable to the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, 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 and subject to
the provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement 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 Trust
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 Trust Agreement or
any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or
otherwise; and
(c) Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act, whenever in this Trust
Agreement 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 reasonably 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 Trust Agreement or by applicable law.
Section 8.20. Voting. Except as otherwise provided in
this Trust Agreement, the consent or vote of the Administrative
Trustees shall be approved by not less than a majority of the
Administrative Trustees.
ARTICLE IX. Termination, Liquidation and Merger
ARTICLE IX.Section 1Section 1. Termination Upon Expiration
Date. Unless terminated earlier, the Trust shall automatically
terminate on December 31, 2050 (the "Expiration Date") and the
Trust Property shall be distributed in accordance with Section
9.04.
ARTICLE IX.Section 1Section 2. Early Termination. Upon the
first to occur of any of the following events (such first
occurrence, an "Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in
respect of, or the dissolution or liquidation of, the Depositor;
(b) the delivery of written direction to the
Property Trustee to terminate the Trust (which direction is
optional and wholly within the discretion of the Depositor);
(c) the redemption of all of the Preferred
Securities; and
(d) an order for judicial termination of the
Trust having been entered by a court of competent jurisdiction;
the Trust shall automatically terminate and the Trustees
shall take such action as is required by Section 9.04.
ARTICLE IX.Section 1Section 3. Termination. The respective
obligations and responsibilities of the Trust and the Trustees
created hereby shall terminate upon the latest to occur of the
following: (i) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to
Section 9.04, or upon the redemption of all of the Trust
Securities pursuant to Section 4.02 or 9.04(d), of all amounts
required to be distributed hereunder upon the final payment of
the Trust Securities; (ii) the payment of any expenses owed by
the Trust; and (iii) the discharge of all administrative duties
of the Administrative Trustees, including the performance of any
tax reporting obligations with respect to the Trust or the
Securityholders.
ARTICLE IX.Section 1Section 4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.02 occurs or upon the Expiration Date, after
satisfaction of creditors of the Trust, if any, as provided by
applicable law, the Trust shall be liquidated by the Property
Trustee as expeditiously as the Property Trustee determines to be
appropriate by distributing to each Securityholder a Like Amount
of Debentures, subject to Section 9.04(e). Notice of liquidation
shall be given by the Administrative Trustees by first-class
mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be outstanding and
any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or if Section 9.04(e) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(b) Except where Section 9.02(c) or Section 9.04(e) applies,
in order to effect any liquidation of the Trust hereunder, and
any resulting distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding
Trust Securities Certificates.
(c) Except where Section 9.02(c) or Section 9.04(e) applies,
after any Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates (or, at the
election of the Depositor, Debentures in global form, subject to
the provisions of the Subordinated Indenture) representing a Like
Amount of Debentures will be issued to Holders of Trust
Securities Certificates, upon surrender of such Trust Securities
Certificates to the Administrative Trustees or their agent for
exchange, (iii) the Depositor shall use its reasonable efforts to
have the Debentures listed on the New York Stock Exchange or on
such other stock exchange or other organization as the Preferred
Securities are then listed or traded, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the
rate provided for in the Debentures from the last Distribution
Date on which a Distribution was made on such Trust Certificates
until such Trust Securities Certificates are so surrendered (and
until such Trust Securities Certificates are so surrendered, no
payments or interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Debentures)
and (v) all rights of Securityholders holding Trust Securities
will cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) If at any time, a Special Event shall occur and be
continuing, the Depositor has the right to redeem the Debentures
in whole but not in part and therefore cause a mandatory
redemption of all the Preferred Securities at the Redemption
Price within 90 days following the occurrence of such Special
Event. The Common Securities will be redeemed on a pro rata
basis with the Preferred Securities, except that if a Debenture
Event of Default has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with
respect to payment of the Redemption Price.
(e) In the event that, notwithstanding the other provisions of
this Section 9.04, whether because of an order for termination
entered by a court of competent jurisdiction or otherwise,
distribution of the Debentures in the manner provided herein is
determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be dissolved,
wound-up or terminated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date of
the dissolution, winding-up or other termination of the Trust,
Securityholders will be entitled to receive out of the assets of
the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any, as
provided by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If, upon any such dissolution,
winding up or termination, 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, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a
pro rata basis (based upon Liquidation Amounts). The Holder of
Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of
Default has occurred and is continuing or if a Debenture Event of
Default has not occurred solely by reason of a requirement that
time lapse or notice be given, the Preferred Securities shall
have a priority over the Common Securities.
ARTICLE IX.Section 1Section 5. Mergers, Consolidations,
Amalgamations or Replacements of the Trust.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
except pursuant to this Trust Agreement. At the request of the
Depositor, with the consent of the Administrative Trustees and
without the consent of the Holders of the Preferred Securities,
the Trust may merge with or into, consolidate, amalgamate, be
replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such
under the laws of any state; provided, that (i) such successor
entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Securities or (b) substitutes
for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank
the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing substantially the
same powers and duties as the Property Trustee as the holder of
the Debentures, (iii) the Successor Securities are listed or
traded, or any Successor Securities will be listed or traded upon
notification of issuance, on any national securities exchange or
other organization on which the Preferred Securities are then
listed, if any, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the Holders of
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, replacement, conveyance,
transfer or lease, the Depositor has received an Opinion of
Counsel to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor
Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor any successor entity
will be required to register as an investment company under the
Investment Company Act and (viii) the Depositor or any permitted
successor or assignee owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the
Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an
entirety to any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other
than a grantor trust for United States Federal income tax
purposes.
ARTICLE X. Miscellaneous Provisions
ARTICLE X.Section 1Section 1. Guarantee by the Depositor and
Assumption of Obligations. Subject to the terms and conditions
hereof, the Depositor irrevocably and unconditionally guarantees
to each Person to whom the Trust is now or hereafter becomes
indebted or liable (the "Beneficiaries"), and agrees to assume
liability for, the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As
used herein, "Obligations" means any indebtedness, expenses or
liabilities of the Trust, other than obligations of the Trust to
pay to Holders or other similar interests in the Trust the
amounts due such Holders pursuant to the terms of the Preferred
Securities or such other similar interests, as the case may be.
This guarantee and assumption is intended to be for the benefit,
of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
ARTICLE X.Section 1Section 2. Limitation of Rights of
Securityholders. Except as provided in Section 9.02 hereof, the
death, incapacity, bankruptcy, termination, dissolution or
liquidation of any Person having an interest, beneficial or
otherwise, in a Trust Security shall not operate to terminate
this Trust Agreement, nor entitle the legal representatives or
heirs of such Person or any Securityholder for such Person, to
claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
ARTICLE X.Section 1Section 3. Amendment.
(a) This Trust Agreement may be amended from time to time by
the Trust (on approval of a majority of the Administrative
Trustees and the Depositor, without the consent of any
Securityholders), (i) to cure any ambiguity, correct or
supplement any provision herein or therein which may be
inconsistent with any other provision herein or therein, or to
make any other provisions with respect to matters or questions
arising under this Trust Agreement, that shall not be
inconsistent with the other provisions of this Trust Agreement,
(ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax
purposes other than as a "grantor trust" and not as an
association taxable as a corporation at any time that any Trust
Securities are Outstanding or to ensure the Trust's exemption
from the status of an "investment company" under the Investment
Company Act, or (iii) to effect the acceptance of a successor
Relevant Trustee's appointment; provided, however, that, except
in the case of clause (ii), such action shall not adversely
affect in any material respect the interests of any
Securityholder and, in the case of clause (i), any amendments of
this Trust Agreement shall become effective when notice thereof
is given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any
provision of this Trust Agreement may be amended by the
Administrative Trustees and the Depositor with (i) the consent of
Holders of Trust Securities representing not less than a majority
(based upon Liquidation Amounts) of the Outstanding Trust
Securities and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment
will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from
status of an "investment company" under the Investment Company
Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with
Section 6.03 or 6.06), this Trust Agreement may not be amended to
(i) change the amount or timing of any Distribution on the Trust
Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Trust
Securities as of a specified date, (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such
payment on or after such date, or (iii) change the provisions of
this Section 10.03(c).
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from status of an
"investment company" under the Investment Company Act afforded by
Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the Trustees,
this Trust Agreement may not be amended in a manner which imposes
any additional obligation on the Depositor or any Trustee.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(g) The Property Trustee is entitled to receive an Opinion of
Counsel as conclusive evidence that any amendment to this Trust
Agreement executed pursuant to this Section 10.03 is authorized
or permitted by, and conforms to, the terms of this Section
10.03, has been duly authorized by and lawfully executed and
delivered on behalf of the other requisite parties, and that it
is proper for the Property Trustee under the provisions of this
Section 10.03 to join in the execution thereof.
ARTICLE X.Section 1Section 4. Separability. In case any
provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
ARTICLE X.Section 1Section 5. Governing Law. This Trust
Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this
Trust Agreement and the Trust Securities shall be construed in
accordance with and governed by the laws of the State of Delaware
(without regard to conflict of laws principles).
ARTICLE X.Section 1Section 6. Successors. This Trust Agreement
shall be binding upon and shall inure to the benefit of any
successor to the Trust or the Relevant Trustees or any of them,
including any successor by operation of law.
ARTICLE X.Section 1Section 7. Headings. The Article and
Section headings are for convenience only and shall not affect
the construction of this Trust Agreement.
ARTICLE X.Section 1Section 8. Notice and Demand. Any notice,
demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to
or upon any Securityholder or the Depositor may be given or
served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities
Register and (ii) in the case of the Common Securityholder or the
Depositor, to Entergy Gulf States, Inc., 000 Xxxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx 00000, Attention: Treasurer, facsimile no.
(000) 000-0000, with a copy to the Secretary, facsimile no. (504)
576-2106. Such notice, demand or other communication to or upon
a Securityholder shall be deemed to have been sufficiently given
or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the
Trust) as follows: (i) with respect to the Property Trustee or
the Delaware Trustee, 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx
Xxxx 00000 marked "Attention: Corporate Trust Trustee
Administration" with a copy to: The Bank of New York (Delaware),
Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 and (ii)
with respect to the Trust or the Administrative Trustees, at the
address above for notice to the Depositor, marked "Attention:
Administrative Trustees for Entergy Gulf States Capital I". Such
notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the Trust or
the Property Trustee.
ARTICLE X.Section 1Section 9. Agreement Not to Petition. Each
of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after
the Trust has been terminated in accordance with Article IX, it
shall not file, or join in the filing of, a petition against the
Trust under any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section
10.09, the Property Trustee agrees, for the benefit of
Securityholders and at the expense of the Depositor, which
expense shall be paid prior to filing an answer, that it shall
file an answer with the bankruptcy court or otherwise properly
contest the filing of such petition by the Depositor against the
Trust or the commencement of such action and raise the defense
that the Depositor has agreed in writing not to take such action
and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Property Trustee or the
Trust may assert. The provisions of this Section 10.09 shall
survive the termination of this Trust Agreement.
ARTICLE X.Section 2 0. Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required or deemed to be part of
this Trust Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required or deemed to be
included in this Trust Agreement by any of the provisions of the
Trust Indenture Act, such required or deemed provision shall
control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as
equity securities representing interests in the Trust.
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY
BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION
OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE AND SHALL CONSTITUTE THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
Section 10.12. Counterparts. This Trust Agreement may
be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Trust Agreement
to be duly executed, all as of the day and year first above
written.
ENTERGY GULF STATES, INC.
By:
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By:
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Name:
Title:
Xxxxxx X. XxXxxx
solely in his capacity as
Administrative Trustee
Xxxxxxx X. Xxxxx, Xx.
solely in his capacity as
Administrative Trustee
Xxxxx Xxxxxxxxx XX
solely in his capacity as
Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY GULF STATES CAPITAL I
THIS CERTIFICATE OF TRUST of Entergy Gulf States Capital I (the "Trust"), dated
as of November 27, 1996, is being duly executed and filed by the undersigned,
as trustees, to create a business trust under the Delaware Business Trust Act
(12 Del. C. 3801, et seq.).
1. Name. The name of the business trust being created hereby is Entergy Gulf
States Capital I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are The
Bank of New York (Delaware), Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000.
3. Effective Date. This Certificate of Trust shall be effective as of its
filing.
IN WITNESS WHEREOF, the undersigned, being the only trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
THE BANK OF NEW YORK (DELAWARE) [_________________________],
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-[ ]
Certificate Evidencing Common Securities
of
ENTERGY GULF STATES CAPITAL I
8.75% Common Securities
(liquidation amount $25 per Common Security)
Entergy Gulf States Capital I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Entergy Gulf
States, Inc. (the "Holder") is the registered owner of _____ (_____) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the 8.75% Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). In accordance
with Section 5.10 of the Trust Agreement (as defined below) the Common
Securities are not transferable and any attempted transfer hereof shall be
void. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities are set forth in, and
this certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended
and Restated Trust Agreement of the Trust dated as of January 28, 1997, as
the same may be amended from time to time (the "Trust Agreement"), including
the designation of the terms of the Common Securities as set forth therein.
The Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Trust at its principal place of business
or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has executed this
certificate for and on behalf of the Trust this ____ day of _________, 199 .
ENTERGY GULF STATES CAPITAL I
By:
not in his (her) individual capacity, but
solely as Administrative Trustee
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of January 28, 1997, between Entergy Gulf States, Inc., a
Texas corporation ("Entergy Gulf States"), and Entergy Gulf States Capital I,
a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from Entergy Gulf States and to issue
its 8.75% Cumulative Quarterly Income Preferred Securities, Series A (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of
the Trust dated as of January 28, 1997 as the same may be amended from time
to time (the "Trust Agreement");
WHEREAS, Entergy Gulf States will directly own all of the Common Securities
and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the Preferred
Securities, which purchase Entergy Gulf States hereby agrees shall benefit
Entergy Gulf States and which purchase Entergy Gulf States acknowledges will be
made in reliance upon the execution and delivery of this Agreement, Entergy
Gulf States, including in its capacity as holder of the Common Securities, and
the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by Entergy Gulf States. Subject to the terms and
conditions hereof, Entergy Gulf States hereby irrevocably and unconditionally
guarantees the full payment, when and as due, of any and all Obligations (as
hereinafter defined) to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries"). As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities the amounts due such holders pursuant to the terms of the Preferred
Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries
have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be of no
further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be
effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by Entergy Gulf States and The Bank
of New York, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.03. Waiver of Notice. Entergy Gulf States hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and Entergy Gulf States hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and
all other notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements and
duties of Entergy Gulf States under this Agreement shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other
obligation under, arising out of, or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on the part of
the Beneficiaries to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Beneficiaries with respect to the
Obligations or any action on the part of the Trust granting indulgence
or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Entergy Gulf States with respect to the happening of any of
the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement directly
against Entergy Gulf States and Entergy Gulf States waives any right or remedy
to require that any action be brought against the Trust or any other person or
entity before proceeding against Entergy Gulf States.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Entergy Gulf States and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or any
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an answer-back,
if sent by telex), to wit:
Entergy Gulf States Capital I
c/o Xxxxxx X. XxXxxx, Administrative Trustee
000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Entergy Gulf States, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Treasurer
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES).
Section 2.05. Limited Liability. The holders of the Preferred Securities, in
their capacities as such, shall not be personally liable for any liabilities or
obligations of the Trust arising out of this Agreement, and the parties hereto
hereby agree that the holders of the Preferred Securities, in their capacities
as such, shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
THIS AGREEMENT is executed as of the day and year first above written.
ENTERGY GULF STATES, INC.
By:
Name:
Title:
ENTERGY GULF STATES CAPITAL I
By:
[_________________]
not in his individual capacity,
but solely as Administrative Trustee
[Securities Depository Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTERGY GULF STATES CAPITAL I
8.75% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security)
Entergy Gulf States
Capital I, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that
____________ (the "Holder") is the registered owner of _____
(_____) preferred securities of the Trust representing an
undivided beneficial interest in the assets of the Trust and
designated the Entergy Gulf States Capital I 8.75% Cumulative
Quarterly Income Preferred Securities, Series A (liquidation
amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper
form for transfer as provided in Section 5.04 or 5.11 of the
Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of January 28, 1997, as the same may be amended
from time to time (the "Trust Agreement"). The holder of this
certificate is entitled to the benefits of the Guarantee
Agreement of Entergy Gulf States, Inc., a Texas corporation, and
The Bank of New York, as guarantee trustee, dated as of January
28, 1997 (the "Guarantee") to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the
Guarantee to the holder of this certificate without charge upon
written request to the Trust at its principal place of business
or registered office.
Upon receipt of this
certificate, the holder of this certificate is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative
Trustees of the Trust has executed this certificate for and on
behalf of the Trust.
Dated:
ENTERGY GULF STATES CAPITAL I
By:
[ ]
not in his (her) individual capacity,
but solely as Administrative Trustee
Countersigned by:
Transfer Agent
ASSIGNMENT
FOR VALUE RECEIVED, the
undersigned assigns and transfers this Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred Securi
ties Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the
books of the Trust. The attorney may substitute another to act for
him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Pre
ferred Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Pre
ferred Securities Certificate)
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST THEREIN.
Certificate Number Number of Preferred Securities CUSIP NO.
P-1 3,400,000 29364H20-0
Certificate Evidencing Preferred Securities
of
ENTERGY GULF STATES CAPITAL I
8.75% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security)
Entergy Gulf States Capital I, a statutory business
trust created under the laws of the State of Delaware (the
"Trust"), hereby certifies that CEDE & CO. (the "Holder") is the
registered owner of THREE MILLION FOUR HUNDRED THOUSAND
(3,400,000) preferred securities of the Trust representing an
undivided beneficial interest in the assets of the Trust and
designated the Entergy Gulf States Capital I 8.75% Cumulative
Quarterly Income Preferred Securities, Series A (liquidation
amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper
form for transfer as provided in Section 5.04 or 5.11 of the
Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of January 28, 1997, as the same may be amended
from time to time (the "Trust Agreement"). The holder of this
certificate is entitled to the benefits of the Guarantee
Agreement of Entergy Gulf States, Inc., a Texas corporation, and
The Bank of New York, as guarantee trustee, dated as of January
28, 1997 (the "Guarantee") to the extent provided therein. The
Trust will furnish a copy of the Trust Agreement and the
Guarantee to the holder of this certificate without charge upon
written request to the Trust at its principal place of business
or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated: January 28, 1997
ENTERGY GULF STATES CAPITAL I
By: _____________________________
Xxxxx Xxxxxxxxx XX
not in his individual capacity, but
solely as Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and
transfers this Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred
Securities Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the
books of the Trust. The attorney may substitute another to act for
him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
