Exhibit 4.14
AMENDED AND RESTATED
TRUST AGREEMENT
between
ENTERGY ARKANSAS, INC., as Depositor
and
THE BANK OF NEW YORK,
THE BANK OF NEW YORK (DELAWARE),
[___________________],
[______________],
and
[_______________], as Trustees
Dated as of [_________] 1, 1996
ENTERGY ARKANSAS CAPITAL I
Entergy Arkansas Capital I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) Not Applicable
(b) 8.08
Section 311(a) 8.13
(b) 8.13
Section 312(a) 5.07
(b) 5.07
(c) 5.07
Section 313(a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 8.14(a)
(d) 8.14(a),8.14(b)
Section 314(a) Not Applicable
(b) Not Applicable
(c)(1) Not Applicable
(c)(2) Not Applicable
(c)(3) Not Applicable
(d) Not Applicable
(e) Not Applicable
Section 315(a) 8.01
(b) 8.02, 8.14(b)
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
Section 316(a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) Not Applicable
(c) Not Applicable
Section 317(a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.09
Section 318(a) 10.10
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[_______] 1, 1996, between (i) Entergy Arkansas, Inc., an
Arkansas corporation (the "Depositor"), (ii) The Bank of New
York, a banking corporation duly organized and existing under the
laws of New York, as trustee (the "Property Trustee" 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 Arkansas, Inc.,
425 West Capitol Avenue, Little Rock, Arkansas 72201 (each, an
"Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee, the
Delaware Trustee and [__________________], as 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, liquidator, assignee, trustee sequestrator or
other similar official of such Person or of any
substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
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 Arkansas, Inc., an
Arkansas 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 Arkansas Capital II", 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 Arkansas, Inc., 425 West
Capitol Avenue, Little Rock, Arkansas 72201.
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
Arkansas, Inc., 639 Loyola Avenue, New Orleans, Louisiana 71103,
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 Arkansas Capital I". Such notice, demand or
other communication to or upon the Trust or the Property Trustee
shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Trust or the Property
Trustee.
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 ARKANSAS, INC.
By:
Title: [________]
THE BANK OF NEW YORK,
as Property Trustee
By:
Title: [____________]
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
Title: [________________]
[_________________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
[______________]
solely in his capacity as Administrative
Trustee
EXHIBIT A
CERTIFICATE OF TRUST
OF
ENTERGY ARKANSAS CAPITAL I
THIS CERTIFICATE OF TRUST of Entergy Arkansas Capital I
(the "Trust"), dated as of , 1996, is being duly
executed and filed by the undersigned, as trustees, to create a
business trust under the Delaware Business Trust Act (12 Del. C.
3801, et seq.).
1. Name. The name of the business trust being created
hereby is Entergy Arkansas Capital I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust with a principal place of business in
the State of Delaware are The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the only
trustees of the Trust, have executed this Certificate of Trust as
of the date first above written.
THE BANK OF NEW YORK (DELAWARE) [_________________________],
not in its individual capacity not in his individual capacity
but solely as Trustee but solely as Trustee
By: By:
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Trustee
By:
Name:
Title:
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common
Securities
C-[ ]
Certificate Evidencing Common Securities
of
ENTERGY ARKANSAS CAPITAL I
Common Securities
(Liquidation Amount $25 per Common Security)
Entergy Arkansas Capital II, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that Entergy Arkansas, Inc. (the "Holder") is
the registered owner of _____ (_____) common securities of the
Trust representing undivided beneficial interests in the assets
of the Trust and designated the Common Securities (liquidation
amount $25 per Common Security) (the "Common Securities"). In
accordance with Section 5.10 of the Trust Agreement (as defined
below) the Common Securities are not transferable and any
attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of _______ ___, 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 ARKANSAS CAPITAL I
By:
not in his (her) individual capacity,
but solely as Administrative Trustee
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ________ ___, 1995, between
Entergy Arkansas, Inc., an Arkansas corporation ("Entergy
Arkansas"), and Entergy Arkansas Capital II, a Delaware business
trust (the "Trust").
WHEREAS, the Trust intends to issue its Common
Securities (the "Common Securities") to and receive Debentures
from Entergy Arkansas and to issue its ___% 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 Arkansas is the issuer of the
Debentures;
NOW, THEREFORE, in consideration of the acceptance by
each holder of the Preferred Securities, which acceptance Entergy
Arkansas hereby agrees shall benefit Entergy Arkansas and which
acceptance Entergy Arkansas acknowledges will be made in reliance
upon the execution and delivery of this Agreement, Entergy
Arkansas, including in its capacity as holder of the Common
Securities, and the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Assumption by Entergy Arkansas. Subject
to the terms and conditions hereof, Entergy Arkansas 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 Arkansas and The Bank of New York, as guarantee
trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. Entergy Arkansas
hereby waives notice of acceptance of this Agreement and of any
Obligation to which it applies or may apply, and Entergy Arkansas
hereby waives presentment, demand for payment, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
Section 1.04. No Impairment. The obligations,
covenants, agreements and duties of Entergy Arkansas under this
Agreement shall in no way be affected or impaired by reason of
the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the performance
of any other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or exercise
any right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Trust granting indulgence or extension of any
kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of
the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, Entergy Arkansas with respect to
the happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce
this Agreement directly against Entergy Arkansas and Entergy
Arkansas waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before
proceeding against Entergy Arkansas.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
assigns, receivers, trustees and representatives of Entergy
Arkansas and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to wit:
Entergy Arkansas Capital II
c/o [_________________], Administrative Trustee
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Entergy Arkansas, Inc.
425 West Capitol Avenue
Little Rock, Arkansas 72201
Facsimile No.: (501) 377-[____]
Attention: [__________]
Section 2.04 THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
THIS AGREEMENT is executed as of the day and year first
above written.
ENTERGY ARKANSAS, INC.
By:
Name:
Title:
ENTERGY ARKANSAS CAPITAL I
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
ENTEGY ARKANSAS CAPITAL I
% Quarterly Income Preferred Securities
(Liquidation Amount $25 per Preferred Security)
Entergy Arkansas Capital II, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ____________ (the "Holder") is the
registered owner of _____ (_____) preferred securities of the
Trust representing an undivided beneficial interest in the assets
of the Trust and designated the Entergy Arkansas Capital II %
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 Arkansas, Inc., an
Arkansas corporation, and The Bank of New York, as guarantee
trustee, dated as of , 1996 (the "Guarantee") to
the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed this certificate for and on behalf of
the Trust.
Dated:
ENTERGY ARKANSAS CAPITAL I
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)