Exhibit 4.14
AMENDED AND RESTATED
TRUST AGREEMENT
among
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK, as Property Trustee
THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee
[___________________],
[______________],
and
[_______________], as Administrative Trustees
Dated as of [_________] 1, 1996
ENTERGY ARKANSAS CAPITAL II
Entergy Arkansas Capital II
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.
TABLE OF CONTENTS
ARTICLE I.
Defined Terms
Section 1.01. Definitions 2
ARTICLE II.
Establishment of the Trust
Section 2.01. Name 12
Section 2.02. Office of the Delaware Trustee;
Principal Place of Business 12
Section 2.03. Initial Contribution of Trust
Property; Organizational Expenses 12
Section 2.04. Issuance of the Preferred
Securities 13
Section 2.05. Subscription and Purchase of
Debentures; Issuance of the
Common Securities 13
Section 2.06. Declaration of Trust; Appointment
of Additional Administrative
Trustees 13
Section 2.07. Authorization to Enter into Certain
Transactions 14
Section 2.08. Assets of Trust 18
Section 2.09. Title to Trust Property 18
ARTICLE III.
Payment Account
Section 3.01. Payment Account 18
ARTICLE IV.
Distributions; Redemption
Section 4.01. Distributions 19
Section 4.02. Redemption 20
Section 4.03. Subordination of Common Securities 22
Section 4.04. Payment Procedures 23
Section 4.05. Tax Returns and Reports 23
Section 4.06. Payment of Taxes, Duties, Etc. of
the Trust 23
Section 4.07. Payments under Subordinated
Indenture 24
ARTICLE V.
Trust Securities Certificates
Section 5.01. Initial Ownership 24
Section 5.02. The Trust Securities Certificates 24
Section 5.03. Execution and Delivery of Trust
Securities Certificates 25
Section 5.04. Registration of Transfer and
Exchange of Preferred Securities
Certificates 25
Section 5.05. Mutilated, Destroyed, Lost or
Stolen Trust Securities
Certificates 26
Section 5.06. Persons Deemed Securityholders 26
Section 5.07. Access to List of Securityholders'
Names and Addresses 26
Section 5.08. Maintenance of Office or Agency 27
Section 5.09. Appointment of Paying Agent 27
Section 5.10. Ownership of Common Securities by
Depositor; Common
Securities Certificate 28
Section 5.11. Book-Entry Preferred Securities
Certificates 28
Section 5.12. Notices to Securities Depository 29
Section 5.13. Definitive Preferred Securities
Certificates 29
Section 5.14. Rights of Securityholders 30
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.01. Limitations on Voting Rights 30
Section 6.02. Notice of Meetings 32
Section 6.03. Meetings of Holders of Preferred
Securities 32
Section 6.04. Voting Rights 32
Section 6.05. Proxies, etc. 33
Section 6.06. Securityholder Action by Written
Consent 33
Section 6.07. Record Date for Voting and Other
Purposes 33
Section 6.08. Acts of Securityholders 33
Section 6.09. Inspection of Records 35
ARTICLE VII.
Representations and Warranties of the Property
Trustee, the Delaware Trustee and the Depositor
Section 7.01. Property Trustee 35
Section 7.02. Delaware Trustee 35
Section 7.03. Depositor 36
ARTICLE VIII.
The Trustees
Section 8.01. Certain Duties and Responsibilities 37
Section 8.02. Certain Notices 38
Section 8.03. Certain Rights of Property Trustee 39
Section 8.04. Not Responsible for Recitals or
Issuance of Securities 42
Section 8.05. May Hold Securities 42
Section 8.06. Compensation; Fees; Indemnity. 42
Section 8.07. Certain Trustees Required;
Eligibility 43
Section 8.09. Co-Trustees and Separate Trustee 44
Section 8.10. Resignation and Removal;
Appointment of Successor 46
Section 8.11. Acceptance of Appointment by
Successor 47
Section 8.12. Merger, Conversion, Consolidation
or Succession to Business 48
Section 8.13. Preferential Collection of Claims
Against Depositor or Trust 48
Section 8.14. Reports by Property Trustee 48
Section 8.15. Reports to the Property Trustee 49
Section 8.16. Evidence of Compliance With
Conditions Precedent 49
Section 8.17. Number of Trustees. 49
Section 8.18. Delegation of Power. 50
Section 8.19. Fiduciary Duty 50
Section 8.20. Voting 51
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.01. Termination Upon Expiration Date 51
Section 9.02. Early Termination 52
Section 9.03. Termination 52
Section 9.04. Liquidation 52
Section 9.05. Mergers, Consolidations,
Amalgamations or Replacements of
the Trust 54
ARTICLE X.
Miscellaneous Provisions
Section 10.01. Guarantee by the Depositor and
Assumption of Obligations 56
Section 10.02. Limitation of Rights of
Securityholders 56
Section 10.03. Amendment 56
Section 10.04. Separability 58
Section 10.05. Governing Law 58
Section 10.06. Successors 58
Section 10.07. Headings 58
Section 10.08. Notice and Demand 58
Section 10.09. Agreement Not to Petition 59
Section 10.10. Conflict with Trust Indenture Act 59
Section 10.11. Acceptance of Terms of Trust
Agreement, Guarantee and
Indenture 60
Section 10.12. Counterparts 60
EXHIBIT A Certificate of Trust of Entergy Arkansas
Capital II A-1
EXHIBIT B Certificate Evidencing Common Securities of
Entergy Arkansas Capital II B-1
EXHIBIT C Agreement as to Expenses and Liabilities C-1
EXHIBIT D Certificate Evidencing Preferred Securities of
Entergy Arkansas Capital II D-1
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 1996, between (i) Entergy Arkansas, Inc., a Arkansas
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) [__________________], [______________] and [______________],
each an individual, as trustee, and each of whose address is c/o
Entergy Arkansas, Inc., 425 West Capitol Avenue, 40th Floor,
Little Rock, Arkansas 72201 (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 [__________________], 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 April __, 1996 (the "Original Trust Agreement"), and
by the execution by the Property Trustee, the Delaware Trustee
and [_________________], as Administrative Trustee and filing
with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on April __, 1996, the form of which
is attached as Exhibit A; and
WHEREAS, the Depositor, the Property Trustee, Delaware
Trustee and [_________________], 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:
ARTICLE 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, liquidator, assignee, trustee sequestrator or
other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of 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 $[________] aggregate principal
amount of the Depositor's [___]% Junior Subordinated Deferrable
Interest Debentures, Series __, Due [____], 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 June 1, 1996, 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 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 as of [_____ __] , 1996, among the Trust, the
Depositor and the underwriters named therein.
ARTICLE II.
Establishment of the Trust
Section II.01. Name. The Trust created hereby shall
be known as "Entergy Arkansas Capital II", as such name may be
modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and
the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued.
Section II.02. Office of the Delaware Trustee;
Principal Place of Business. The office of the Delaware Trustee
in the State of Delaware is White Clay Center, Route 273, Newark,
Delaware 19711, 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 Arkansas, Inc., 425 West
Capitol Avenue, 40th Floor, Little Rock, Arkansas 72201.
Section II.03. 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.
Section II.04. 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 and
deliver a Preferred Securities Certificate, registered in the
name of the nominee of the Securities Depository, in an aggregate
amount of _________ Preferred Securities having an aggregate
Liquidation Amount of $[________] against receipt of the
aggregate purchase price of such Preferred Securities of
$__________, which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
Section II.05. 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 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 $[________], and, in
satisfaction of the purchase price for such Debentures, (x) one
of the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the Depositor Common Securities
Certificates in accordance with Section 5.02, registered in the
name of the Depositor, in an aggregate amount of [_____] Common
Securities having an aggregate Liquidation Amount of $[_______],
and (y) the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $[________] representing the
proceeds from the sale of the Preferred Securities pursuant to
the Underwriting Agreement.
Section II.06. 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.
Section II.07. 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;
(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 or (v)
take or consent to any action that would result in the placement
of a Lien on any of the Trust Property. 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.
(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.
Section II.08. Assets of Trust. The assets of the
Trust shall consist of the Trust Property.
Section II.09. Title to Trust Property. Legal title
to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders in accordance with this Trust Agreement.
ARTICLE III.
Payment Account
Section III.01. 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
Section IV.01. 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 [_______ __], 1996. 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 [____]% 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.
Section IV.02. 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 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.
Section IV.03. 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.
Section IV.04. 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.
Section IV.05. 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.
Section IV.06. 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.
Section IV.07. 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
Section V.01. 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.
Section V.02. 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.
Section V.03. 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 Preferred
Securities 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.
Section V.04. 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.
Section V.05. 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.
Section V.06. 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.
Section V.07. 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.
Section V.08. 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.
Section V.09. 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.
Section V.10. 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.
Section V.11. 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.
Section V.12. 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.
Section V.13. 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.
Section V.14. Rights of Securityholders. The legal
title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than an undivided beneficial interest in the assets
of the Trust conferred by their Trust Securities and they shall
have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The
Trust Securities shall be personal property giving only the
rights specifically set forth therein and in this 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
Section VI.01. 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.
Section VI.02. 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.
Section VI.03. 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 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 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.
Section VI.04. 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.
Section VI.05. 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.
Section VI.06. Securityholder Action by Written
Consent. Any action which may be taken by Securityholders at a
meeting may be taken without a meeting if Securityholders holding
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).
Section VI.07. Record Date for Voting and Other
Purposes. For the purposes of determining the Securityholders
who are entitled to notice of and to vote at any meeting or by
written consent, or to participate in any Distribution on the
Trust Securities in respect of which a record date is not
otherwise provided for in this 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.
Section VI.08. 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.
A Securityholder may institute a legal proceeding
directly against the Depositor under the Guarantee to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee (as defined in the
Guarantee), the Trust or any Person or entity.
Section VI.09. 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
Section VII.01. 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.
Section VII.02. 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.
Section VII.03. 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
Section VIII.01. 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.
Section VIII.02. 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.
Section VIII.03. 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.
Section VIII.04. Not Responsible for Recitals or
Issuance of Securities. The recitals contained herein and in the
Trust Securities Certificates shall be taken as the statements of
the Trust, and the Trustees do not assume any responsibility for
their correctness. The Trustees 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.
Section VIII.05. 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.
Section VIII.06. Compensation; Fees; Indemnity.
The Depositor agrees
(1) to pay to the Trustees from time to time
reasonable compensation for all services rendered by the
Trustees hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable
expenses, disbursements and advances reasonably incurred or
made by the Trustees 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 (gross negligence,
in the case of any Administrative Trustee), bad faith or
willful misconduct; and
(3) to indemnify each Trustee for, and to hold each
Trustee harmless against, any and all loss, damage, claims,
liability or expense incurred without negligence (gross
negligence, in the case of any Administrative Trustee), 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 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.
Section VIII.07. 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.
Section VIII.08. Conflicting Interests.
If the Property Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject
to the provisions of, the Trust Indenture Act and this 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.
Section VIII.09. 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.
Section VIII.10. 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).
Section VIII.11. 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.
Section VIII.12. 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.
Section VIII.13. 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).
Section VIII.14. 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 [________ __] of each year, commencing
[_______ __], 199[_].
(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.
Section VIII.15. 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.
Section VIII.16. 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.
Section VIII.17. 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 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.
Section VIII.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purpose of executing any documents contemplated in Section
2.07(a), including any registration statement or amendment
thereto filed with the Commission, or making any other
governmental filing; and
(b) the Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section VIII.19. 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
Section IX.01. Termination Upon Expiration Date.
Unless terminated earlier, the Trust shall automatically
terminate on December 31, [____] (the "Expiration Date") and the
Trust Property shall be distributed in accordance with Section
9.04.
Section IX.02. 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 by the Depositor at any time (which
direction is wholly optional and within the discretion
of the Depositor) to terminate the Trust and distribute
the Debentures to Securityholders in exchange for the
Trust Securities in accordance with Section 9.04;
(c) the redemption of all of the Preferred
Securities;
(d) the termination of the Trust in accordance
with Section 9.04(d); and
(e) 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.
Section IX.03. Termination. The respective
obligations and responsibilities of the Trust and the Trustees
created hereby shall terminate upon the latest to occur of the
following: (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.
Section IX.04. Liquidation.
(a) If an Early Termination Event specified in clause
(a), (b), (d) or (e) 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.
Section IX.05. Mergers, Consolidations, Amalgamations
or Replacements of the Trust.
The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any
corporation or other Person, except 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
Section X.01. 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.
Section X.02. Limitation of Rights of Securityholders.
The death or incapacity of any Person having an interest,
beneficial or otherwise, in a Trust Security shall not operate to
terminate this 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.
Section X.03. 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.
Section X.04. 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.
Section X.05. 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).
Section X.06. 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.
Section X.07. Headings. The Article and Section
headings are for convenience only and shall not affect the
construction of this Trust Agreement.
Section X.08. 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
Arkansas, Inc., 425 West Capitol Avenue, 40th Floor, Little Rock,
Arkansas 72201, Attention: [Treasurer], facsimile no. (501) 377-
[____], with a copy to the Secretary, facsimile no. (501) 377-
[____]. 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, 101 Barclay Street, 21 West, New York, New
York 10286 marked "Attention: Corporate Trust Trustee
Administration" with a copy to: The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711 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 Arkansas Capital II". Such
notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the Trust or
the Property Trustee.
Section X.09. 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.
Section X.10. 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 ARKANSAS, INC.
By:
Title: [________]
THE BANK OF NEW YORK,
as Property Trustee
By:
Title: [____________]
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:________________________________
Title: [________________]
[_________________]
solely in his capacity as
Administrative Trustee
[______________]
solely in his capacity as
Administrative Trustee
[______________]
solely in his capacity as
Administrative Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY ARKANSAS CAPITAL II
THIS CERTIFICATE OF TRUST of Entergy Arkansas Capital
II (the "Trust"), dated as of , 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 Arkansas Capital II.
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), White
Clay Center, Route 273, Newark, Delaware 19711.
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 ARKANSAS CAPITAL II
__%Common Securities
(liquidation amount $25 per Common Security)
Entergy Arkansas Capital II, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that Entergy Arkansas, 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 __% 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 _______ ___, 1996, 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 ARKANSAS CAPITAL II
By:_______________________________
not in his (her) individual
capacity, but solely as
Administrative Trustee
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1996, between
Entergy Arkansas, Inc., a Arkansas corporation ("Entergy
Arkansas"), and Entergy Arkansas Capital II, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from Entergy Arkansas and to issue its ___% 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 ________ __, 1996 as the same
may be amended from time to time (the "Trust Agreement");
WHEREAS, Entergy Arkansas 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
Arkansas hereby agrees shall benefit Entergy Arkansas and which
purchase Entergy Arkansas acknowledges will be made in reliance
upon the execution and delivery of this Agreement, Entergy
Arkansas, 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 Arkansas. Subject
to the terms and conditions hereof, Entergy Arkansas 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 (i) obligations of the Trust
to pay to holders of any Preferred Securities or other similar
interests in the Trust the amounts due such holders pursuant to
the terms of the Preferred Securities or such other similar
interests, as the case may be and (ii) obligations arising out of
the negligence, willful misconduct or bad faith of the Trustees
of the Trust. 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 Arkansas 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 Arkansas
hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and Entergy Arkansas
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 Arkansas 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 Arkansas with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
this Agreement directly against Entergy Arkansas and Entergy
Arkansas 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 Arkansas.
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
Arkansas 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 Arkansas Capital II
c/o [_________________], Administrative Trustee
425 West Capitol Avenue, 40th Floor
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Entergy Arkansas, Inc.
425 West Capitol Avenue, 40th Floor
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Attention: [__________]
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).
THIS AGREEMENT is executed as of the day and year first
above
written.
ENTERGY ARKANSAS, INC.
By:
Name:
Title:
ENTERGY ARKANSAS CAPITAL II
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 ARKANSAS CAPITAL II
__% Cumulative Quarterly Income Preferred Securities, Series A
(liquidation amount $25 per Preferred Security)
Entergy Arkansas Capital II, 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 Arkansas Capital II %
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 , 1996, 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 Arkansas, Inc., a Arkansas corporation, and
The Bank of New York, as guarantee trustee, dated as of
, 1996 (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 ARKANSAS CAPITAL II
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
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)