Exhibit 4.17
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENTERGY LOUISIANA, INC., as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
[___________________],
[______________],
and
[_______________], as Trustees
Dated as of [_________] 1, 1996
ENTERGY LOUISIANA CAPITAL III
Entergy Louisiana Capital III
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a), 8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02, 8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Trust Agreement.
AMENDED AND RESTATED TRUST AGREEMENT, dated as of [_______] 1,
1996, between (i) Entergy Louisiana, Inc., a Louisiana 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" and, in its separate capacity and not in its capacity as
Property Trustee, the "Bank"), (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 Louisiana, Inc., 639 Loyola Avenue, New Orleans,
Louisiana 70113 (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 the Administrative Trustee, have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act 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,
dated April __, 1996, a copy 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, (ii)
the issuance of the Common Securities by the Trust to the Depositor, (iii)
the issuance of the Preferred Securities by the Trust 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 party and for the benefit of the Securityholders, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE
Defined Terms
Section Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
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;
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
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/or a given period, the amount of Additional
Interest (as defined in the Subordinated Indenture) 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.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver, liqui
dator, assignee, trustee sequestrator or other similar official
of such Person or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
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 and to be in full force and effect on the date of such
certification, and delivered to the appropriate Trustee.
"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 of Trust" has the meaning specified in Section
2.07(d).
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"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,
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 Issuer" means Entergy Louisiana, Inc., a Louisiana
corporation, in its capacity as issuer of the Debentures.
"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, as trustee under
the Subordinated Indenture.
"Debentures" means the $[________] aggregate principal amount of
the Depositor's [___]% Junior Subordinated Debentures, Series A, 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 5.11.
"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, plus accumulated and unpaid distributions of any Trust
Security 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 Trust 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).
"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, 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) 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
plus accumulated and unpaid Distributions to the date of such payment and
(ii) Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Debentures are
distributed.
"Liquidation Amount" means the stated amount of $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).
"Offer" has the meaning specified in Section 2.07(c).
"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
Administrative Trustees or delivered to the Administrative
Trustees 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 or
5.11;
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 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 Trustee 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
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 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 shall be a
Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust
Security.
"Redemption Tax Opinion" has the meaning specified in Section
9.04(d).
"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 matter.
"Securities Depository" shall be The Depository Trust Company.
"Securities Depository Participant" means an institution which
deposits securities with a Securities Depository for holding thereby.
"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 shall be deemed to be 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
[______] 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 (which may be counsel to the Depositor or an affiliate but not an
employee thereof and which must be acceptable to the Property Trustee)
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
decision interpreting or applying such laws or regulations, which amendment
or change is effective or such 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, 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 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
Establishment of the Trust
Section Name. The Trust created hereby shall be known as
"Entergy Louisiana Capital III", 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 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 Louisiana, Inc., 639 Loyola Avenue, New
Orleans, Louisiana 70113.
Section 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 Issuance of the Preferred Securities. On [____ __],
1996 the Depositor and an Administrative Trustee, on behalf of the Trust,
both 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, executed manually and delivered a Preferred Securities Certificate,
registered in the name of the nominee of The Depositary Trust Company,
having an aggregate Liquidation Amount of $[________].
Section 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 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, 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 Declaration of Trust; Appointment of Additional
Administrative Trustees. The exclusive purposes and functions of the
Trust are (i) to issue Trust Securities and invest the proceeds thereof
in Debentures, and (ii) to engage in those activities necessary,
convenient 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 Authorization to Enter into Certain Transactions.
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 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:
As among the Trustees, the Administrative Trustees shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
the issuance and sale of the Trust Securities;
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 as may be
necessary or desirable in connection with the consummation of the
Underwriting Agreement (such execution to be by the
Administrative Trustees or any one of them);
to qualify the Trust to do business in any jurisdiction as
may be necessary or desirable;
the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment
Account;
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;
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;
the appointments of a Paying Agent, a Transfer Agent and a
Registrar in accordance with this Trust Agreement (subject to
Section 5.09);
registering transfers of the Trust Securities in accordance
with this Trust Agreement; and
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).
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:
the establishment of the Payment Account;
the receipt of the Debentures;
the deposit of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms of
this Trust Agreement;
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;
the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
as provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the execution of the
certificate of cancellation to be prepared and filed by the
Administrative Trustees with the Secretary of State of the State
of Delaware; and
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 Trustee
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 Holder
pursuant to the terms of this Trust Agreement.
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 and not as an association taxable as a corporation, (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. The Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
In connection with the issue 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):
to prepare for filing by the Trust with the Commission and
to execute a registration statement on Form S-3 in relation to
the Preferred Securities, including any amendments thereto;
to determine the States in which to take appropriate action
to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and advise the
Trustees of actions they must take on behalf of the Trust, and
prepare for execution and filing any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor
deems necessary or advisable in order to comply with the
applicable laws of any such States;
to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or
the Nasdaq National Market for listing upon notice of issuance of
any Preferred Securities 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;
to prepare for filing by the Trust with the Commission and
to execute 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 ("Exchange Act"),
including any amendments thereto;
to execute and deliver on behalf of the Trust the
Underwriting Agreement and such other agreements as may be
necessary or desirable in connection with the consummation
thereof;
to select the investment banker or bankers to act as
underwriters with respect to the offer and sale by the Trust of
Preferred Securities ("Offer") and negotiate the terms of an
Underwriting Agreement and pricing agreement providing for the
Offer; and
to take any other actions necessary or desirable to carry
out any of the foregoing activities.
Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that the Trust will not
be deemed to be an "investment company" required to be registered under
the Investment Company Act of 1940, as amended, or classified other than
as a "grantor trust" for United States Federal income tax purposes and
not as an association taxable as a corporation and 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 Assets of Trust. The assets of the Trust shall consist
of the Trust Property.
Section 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
Payment Account
Section Payment Account.
On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustees 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.
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
Distributions; Redemption
Section Distributions.
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 which is a Business Day (and
without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar
year, payment of such distribution shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as
if made on such date (each date on which distributions are payable in
accordance with this Section 4.01(a) a "Distribution Date").
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.
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 available in the Payment Account for the
payment of such Distributions.
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 15 days prior to the relevant Distribution
Date.
Section Redemption.
On each Debenture Redemption Date and at the maturity date
for the Debentures (as defined in the Subordinated Indenture), the
Property Trustee will be required to redeem a Like Amount of Trust
Securities at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment.
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 or liquidation shall
state:
the Redemption Date;
the Redemption Price and the amount of accumulated and
unpaid Dividends to be paid on the Redemption Date;
the CUSIP number;
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
that on the Redemption Date the Redemption Price plus
accumulated and unpaid Distributions to the date of such payment
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.
The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price plus accumulated and unpaid
Distributions to the date of such payment with the proceeds from the
contemporaneous redemption of Debentures. Redemptions of the Trust
Securities shall be made and the Redemption Price plus accumulated and
unpaid Distributions to the date of such payment 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.
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
shall irrevocably deposit with the Paying Agent (or Securities
Depository, in the event the Preferred Securities are book-entry only)
funds sufficient to pay the applicable Redemption Price plus accumulated
and unpaid Distributions to the date of such payment and will give the
Paying Agent irrevocable instructions and authority to pay the
Redemption Price plus accumulated and unpaid Distributions to the date
of such payment 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 plus accumulated and unpaid Distributions to the date
of such payment, 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 plus accumulated and unpaid Distributions to such date shall be
made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay). In the event
that payment of the Redemption Price plus accumulated and unpaid
Distributions 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 plus accumulated and unpaid
Distributions 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 plus accumulated and unpaid Distributions to such
date.
Payment of the Redemption Price on the Trust Securities
shall be made to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which
shall be the fifteenth day prior to the Redemption Date.
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 Subordination of Common Securities. 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 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 plus accumulated and unpaid Distributions the full
amount of such Redemption Price plus accumulated and unpaid
Distributions 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 plus accumulated and unpaid Distributions of,
Preferred Securities then due and payable.
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 have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust Agreement
with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of
the Holders of the Preferred Securities and not the Holder of the Common
Securities, and only the Holders of the Preferred Securities will have
the right to direct the Property Trustee to act on their behalf.
Section Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a 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 Administrative Trustees and the Holder of the Common
Securities.
Section 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 or 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 and the Property Trustee with a copy
of all such returns, reports and schedules promptly after such filing or
furnishing. The Trustees 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 Payments under 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
Trust Securities Certificates
Section Initial Ownership. Upon the creation of the Trust by
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 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 Depository Trust Company, 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 or 5.11.
Section 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,
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 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 the
Common Securities Certificates (subject to Section 5.10 in the case of the
Common Securities Certificates) and registration of transfers and exchanges
of Preferred Securities Certificates as herein provided.
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 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If 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 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
execution on behalf of the Trust is by facsimile signature,
countersigned by a Transfer Agent; and the Administrative Trustees, or
any one of them, shall make available for delivery, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, 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 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 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of
transfer, the Trustees 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 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 Maintenance of Office or Agency. The Company 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 Company
or the Transfer Agent in respect of the Trust Securities Certificates may
be served. The Company initially designates The Bank of New York at its
principal corporate trust office for such purposes. The Company shall or
shall cause the Transfer Agent to give prompt written notice to the
Depositor, the Property Trustee and to the Securityholders of any change in
any such office or agency.
Section 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 if the
Administrative Trustee or any one of them determines in its sole discretion
that the Paying Agent shall have failed to perform its obligations under
this Trust Agreement in any material respect. 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 0. Ownership of Common Securities by Depositor. On the
Closing Date and on each other date provided for in Section 2.05, the
Depositor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities 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". Common Securities
Certificates representing the Common Securities shall be issued to the
Depositor in the form of a typewritten or definitive Common Securities
Certificate.
Section Definitive Preferred Securities Certificates. Upon
initial issuance of the Preferred Securities the Definitive Preferred
Securities Certificates shall be typewritten, 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 by
the Administrative Trustees, or any one of them. The Administrative
Trustees, or any one of them, shall execute on behalf of the Trust by
manual or facsimile signature, and, if executed by facsimile on behalf of
the Trust, countersigned by the Transfer Agent or its agent the Definitive
Preferred Securities Certificates initially in accordance with the
instructions of the Depositor. Neither the Transfer Agent nor any of the
Administrative 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.
Section Book-Entry System. Some or all of the Preferred
Securities may be registered in the name of the Securities Depository or a
nominee therefor, and held in the custody of the Securities Depository. In
such event, a single certificate will be issued and delivered to the
Securities Depository for such Preferred Securities, in which case the
Owners of such Preferred Securities will not receive physical delivery of
certificates for Preferred Securities. Except as provided herein, all
transfers of beneficial ownership interests in such Preferred Securities
will be made by book-entry only, and no investor or other party purchasing,
selling or otherwise transferring beneficial ownership of the Preferred
Securities will receive, hold or deliver any certificate for Preferred
Securities. The Depositor, the Trustees and the Paying Agent will
recognize the Securities Depository or its nominee as the Holder of
Preferred Securities for all purposes, including notices and voting.
The Administrative Trustees, at the direction and expense of the
Depositor, may from time to time appoint a Securities Depository or a
successor thereto and enter into a letter of representations or other
agreement with such Securities Depository to establish procedures with
respect to the Preferred Securities. Any Securities Depository shall be a
Clearing Agency.
The Depositor and the Trustees covenant and agree to meet the
requirements of a Securities Depository for the Preferred Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred
Securities.
Whenever the beneficial ownership of any Preferred Securities is
determined through the books of a Securities Depository, the requirements
in this Trust Agreement of holding, delivering or transferring such
Preferred Securities shall be deemed modified with respect to such
Preferred Securities to meet the requirements of the Securities Depository
with respect to actions of the Trustees, the Depositor and the Paying
Agent. Any provisions hereof permitting or requiring delivery of such
Preferred Securities shall, while such Preferred Securities are in a book-
entry system, be satisfied by the notation on the books of the Securities
Depository in accordance with applicable state law.
Section 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 Securityholders against payment of the purchase
price therefor will be fully paid and nonassessable interests in the Trust.
ARTICLE
Acts of Securityholders; Meetings; Voting
Section Limitations on Voting Rights.
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, 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 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 at least 66 2/3% 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.
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 at least 66 2/3 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 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 Administrative Trustees 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 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 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 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 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 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 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 the Administrative Trustees. Such instrument
or instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Securityholders signing
such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
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.
Section 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
Representations and Warranties of the Property
Trustee and the Delaware Trustee
Section Property [and Delaware] Trustee. The Property [and
Delaware] Trustee hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
the Property [and Delaware] 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] [Delaware];
the Property [and 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;
this Trust Agreement has been duly authorized, executed and
delivered by the Property [and Delaware] Trustee and constitutes the
valid and legally binding agreement of the Property and 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;
the execution, delivery and performance by the Property [and
Delaware] Trustee of this Trust Agreement will not violate, conflict
with or constitute a breach of the Property [and Delaware] Trustee's
charter or by-laws; and
neither the authorization, execution or delivery by the
Property [and Delaware] Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property [and 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 [New York] [Delaware] law governing the banking or
trust powers of the Property Trustee.
[Section Delaware Trustee. The Delaware Trustee represents and
warrants for the benefit of the Depositor and the Securityholders that:
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;
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;
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;
the execution, delivery and performance by the Delaware
Trustee of this Trust Agreement will not violate the Delaware Trustee's
charter or by-laws; and
neither the authorization, execution or delivery by the
Delaware Trustee of this Trust Agreement nor the consummation of any of
the transactions by the Delaware Trustee contemplated herein require the
consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to any governmental
authority or agency under any existing Federal or Delaware law governing
the banking or trust powers of the Delaware Trustee.]
ARTICLE
The Trustees
Section Certain Duties and Responsibilities.
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 of
1940, as amended, 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.
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.
All duties and responsibilities of the Property Trustee
contained in this Trust Agreement are subject to the following:
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 of 1940, as amended;
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;
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
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 Notice of Defaults. Within five Business Days after
the occurrence of any Event of Default, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice
of any default known to the Property Trustee to the Securityholders and the
Depositor, unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Section Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
the Property Trustee may 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;
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 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;
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 upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
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;
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;
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;
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;
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;
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;
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;
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;
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);
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
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 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 May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, 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 may otherwise deal
with the Trust with the same rights it would have if it were not a Trustee
or such other agent.
Section 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, 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 shall survive the termination of
this Trust Agreement.
Section Certain Trustees Required; Eligibility. 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, 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,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VIII.
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.
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 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 Co-Trustees and Separate Trustee.
Unless a Debenture 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. 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 under the Subordinated Indenture 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 an Event of
Default under the Subordinated Indenture 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.
(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 0. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (as the case may be, the "Relevant
Trustee") and no appointment of a successor Relevant Trustee pursuant to
this Article shall become effective until the acceptance of appointment by
the successor Relevant Trustee in accordance with the applicable
requirements of Section 8.11.
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.
Unless a Debenture Event of Default shall have occurred and be
continuing, the Relevant 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 Relevant 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 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 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 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 Reports by Property Trustee. 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[_].
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 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 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 Number of Trustees.
The number of Trustees shall be five, provided that
Depositor, by written instrument may increase or decrease the number of
Administrative Trustees.
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.
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 Delegation of Power.
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
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 Fiduciary Duty.
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;
Unless otherwise expressly provided herein and subject to
the provisions of the Trust Indenture Act:
whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
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
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
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
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.
ARTICLE
Termination and Liquidation
Section Termination Upon Expiration Date. 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 Early Termination. Upon the first to occur of any of
the following events (such first occurrence, an "Early Termination Event"):
the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
the redemption of all of the Preferred Securities;
termination of the Trust in accordance with Section
9.04(d);
an order for judicial termination of the Trust having been
entered by a court of competent jurisdiction;
the Trust shall terminate and the Trustees shall take such action as is
required by Section 9.04.
Section 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 Liquidation. If an Early Termination Event specified
in clause (i) or (iv) of Section 9.02 occurs, 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:
state the Liquidation Date;
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
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.
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.
After any Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates representing a
Like Amount of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such Trust Securities Certificates to
the Administrative Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures, accruing interest at the rate
provided for in the Debentures from the last Distribution Date on which
a Distribution was made on such Trust Certificates until such 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 (iv) all rights of Securityholders
holding Trust Securities will cease, except the right of such
Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
If at any time, a Special Event shall occur and be continuing,
the Depositor has the right to (i) 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, or (ii) cause the termination of
the Trust. Further, if at any time, the Trust is not or will not be
taxed as a grantor trust under the United States Federal income tax law,
but a Tax Event has not occurred, the Depositor may elect termination of
the Trust. In the event the Depositor elects under the provisions of
this section for the Trust to be terminated, the Administrative Trustees
shall, terminate the Trust and, after satisfaction of creditors of the
Trust, if any, as provided by applicable law, cause Debentures held by
the Property Trustee having a Like Amount of the Preferred Securities
and the Common Securities to be distributed to the Holders of the
Preferred Securities and the Common Securities on a pro rata basis in
liquidation of such Holders' interests in the Trust (in the case of such
an election following the occurrence of a Special Event) 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 and
accumulated and unpaid Distributions to the date of such payment.
In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for termination entered by a
court of competent jurisdiction or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property
Trustee not to be practical, the Trust Property shall be liquidated, and
the Trust shall be dissolved, wound-up or terminated, by the Property
Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution, winding-up or other termination
of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust, if any, as
provided by applicable law, an amount equal to the Liquidation Amount
per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution").
If, upon any such dissolution, winding up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of Common Securities
will be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if a
Debenture Event of Default has occurred and is continuing or if a
Debenture Event of Default has not occurred solely by reason of a
requirement that time lapse or notice be given, the Preferred Securities
shall have a priority over the Common Securities.
ARTICLE
Miscellaneous Provisions
Section 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 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 Amendment.
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, which shall not be inconsistent with the
other provisions of this Trust Agreement or (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 not 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
of 1940, as amended; 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.
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
Federal income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as
amended.
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 or (ii) restrict
the right of a Securityholder to institute suit for the enforcement of
any such payment on or after such date.
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 of 1940, as amended, afforded by Rule 3a-5
thereunder.
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.
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.
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 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 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 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 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust
Agreement.
Section 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 Louisiana, Inc.,
639 Loyola Avenue, New Orleans, Louisiana 70113, Attention: [Treasurer],
facsimile no. (504) 576-[____], with a copy to the Secretary, facsimile no.
(504) 576-[____]. 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 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 Louisiana Capital
III". 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 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, 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 0. Conflict with Trust Indenture Act.
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.
The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
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.
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.
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 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.
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 LOUISIANA, 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 LOUISIANA CAPITAL III
THIS CERTIFICATE OF TRUST of Entergy Louisiana Capital III (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 Louisiana Capital III.
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 LOUISIANA CAPITAL III
Common Securities
(Liquidation Amount $25 per Common Security)
Entergy Louisiana Capital III, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies
that Entergy Louisiana, 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 _______ ___, 1995, as the same may be amended from time
to time (the "Trust Agreement"). 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 LOUISIANA CAPITAL III
By:
not in his (her) individual capacity, but
solely as Administrative Trustee
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between Entergy
Louisiana, Inc., a Louisiana corporation ("Entergy Louisiana"), and Entergy
Louisiana Capital III, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the
"Common Securities") to and receive Debentures from Entergy Louisiana and
to issue its ___% Quarterly Income Preferred Securities (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 Louisiana is the issuer of the Debentures;
NOW, THEREFORE, in consideration of the acceptance by each holder
of the Preferred Securities, which acceptance Entergy Louisiana hereby
agrees shall benefit Entergy Louisiana and which acceptance Entergy
Louisiana acknowledges will be made in reliance upon the execution and
delivery of this Agreement, Entergy Louisiana, including in its capacity as
holder of the Common Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Entergy Louisiana. Subject to the
terms and conditions hereof, Entergy Louisiana hereby irrevocably and
unconditionally assumes 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
Louisiana 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 Louisiana hereby waives
notice of acceptance of this Agreement and of any Obligation to which it
applies or may apply, and Entergy Louisiana 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 Louisiana 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 Louisiana with respect to the happening of
any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against Entergy Louisiana and Entergy Louisiana 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 Louisiana.
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 Louisiana 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 Louisiana Capital III
c/o [_________________], Administrative Trustee
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-[____]
Entergy Louisiana, Inc.
639 Loyola Avenue
New Orleans, Louisiana 70113
Facsimile No.: (504) 576-[____]
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 LOUISIANA, INC.
By:
Name:
Title:
ENTERGY LOUISIANA CAPITAL III
By:
[_________________]
not in his individual capacity, but solely
as Administrative Trustee
[Clearing Agency Legend]
EXHIBIT D
Certificate Number Number of Preferred Securities
P- CUSIP NO.
Certificate Evidencing Preferred Securities
of
ENTERGY LOUISIANA CAPITAL III
% Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Entergy Louisiana Capital III, 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 Louisiana
Capital III % Quarterly Income Preferred Securities (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 Louisiana, Inc., a Louisiana
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 LOUISIANA CAPITAL III
By:
[ ]
not in his (her) individual
capacity, but solely as
Administrative Trustee
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
of the Preferred Securities represented by this Preferred Securities
Certificate and irrevocably appoints
attorney to transfer such Preferred Securities Certificate on the books of the
Trust. The attorney may substitute another to act for him or her.
Date:__________________
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
Signature:________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)