EXHIBIT 4.11
TRUST AGREEMENT
OF
COVANTA CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of July 16, 2001 (this "Trust Agreement"),
by and among Covanta Energy Corporation, a Delaware corporation, as sponsor (the
"Sponsor"), and Wilmington Trust Company, a Delaware banking corporation, as
Delaware trustee (the "Trustee"). The Sponsor and the Trustee hereby agree as
follows:
1. The trust created hereby shall be known as "Covanta Capital Trust I" (the
"Trust"), in which name the Trustee or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts,
and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the Trust
the sum of $10. The Trustee hereby acknowledges receipt of such amount in
trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title
12 of the Delaware Code, 12 Del. C.ss. 3801, et seq. (the "Business Trust
Act"), and that this Trust Agreement constitutes the governing instrument
of the Trust. The Trustee is hereby authorized and directed to execute and
file a certificate of trust with the Secretary of State of the State of
Delaware in accordance with the provisions of the Business Trust Act.
3. The Sponsor and the Trustee will enter into an amended and restated Trust
Agreement satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created
hereby and the issuance by the Trust of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement (i) the Trustee shall not have any
duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law, and (ii) the Sponsor shall take or
cause to be taken any action as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustee may
take all actions which the Sponsor deems necessary, convenient or
incidental to effect the transactions contemplated herein. The Trustee
shall not have any duty or obligation under or in connection with this
Trust Agreement or any document contemplated hereby, except as expressly
provided by the terms of this Trust Agreement, and no implied duties or
obligations shall be read into this Trust Agreement against the Trustee.
The right of the Trustee to perform any discretionary act enumerated herein
shall not be construed as a duty.
4. The Sponsor hereby agrees to (i) reimburse the Trustee for all reasonable
expenses (including reasonable fees and expenses of counsel and other
experts), (ii) indemnify, defend and hold harmless the Trustee and the
officers, directors, employees and agents of the Trustee (collectively,
including the Trustee in its individual capacity, the "Indemnified
Persons") from and against any and all losses, damages, liabilities,
claims, actions, suits, costs, expenses, disbursements (including the
reasonable fees and expenses of counsel), taxes and penalties of any kind
and nature whatsoever (collectively, "Expenses"), to the extent that such
Expenses arise out of or are imposed upon or asserted at any time against
such Indemnified Persons with respect to the performance of this Trust
Agreement, the creation, operation, administration or termination of the
Trust, or the transactions contemplated hereby; provided, however, that the
Sponsor shall not be required to indemnify an Indemnified Person for
Expenses to the extent such Expenses result from the willful misconduct,
bad faith or gross negligence of such Indemnified Person, and (iii) advance
to each such Indemnified Person Expenses (including reasonable fees and
expenses of counsel) incurred by such Indemnified Person, in defending any
claim, demand, action, suit or proceeding prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by the Sponsor
of an undertaking, by or on behalf of such Indemnified Person, to repay
such amount if it shall be determined that such Indemnified Person is not
entitled to be indemnified therefor under this Section 4. The obligations
of the Sponsor under this Section 4 shall survive the resignation or
removal of the Trustee, shall survive the termination, amendment,
supplement, and/or restatement of this Trust Agreement.
5. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, (a) the
Registration Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the 1933 Act
Registration Statement (including the prospectus, prospectus supplements
and the exhibits contained therein), relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration
Statement on Form 8-A (the "1934 Act Registration Statement") (including
all pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, including any
amendments thereto; (ii) to file with the New York Stock Exchange, the
Pacific Exchange or any other national stock exchange or The Nasdaq
National Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the
securities or blue sky laws of such jurisdictions as the Sponsor, on behalf
of the Trust, may deem necessary or desirable; (iv) to negotiate the terms
of and to execute, deliver and perform on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, including the
Pricing Agreement attached as an exhibit thereto, if any, in each case
among the Trust, the Sponsor and the several Underwriters named therein,
substantially in the form included as an exhibit to the 1933 Act
Registration Statement; (v) to prepare, execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Preferred Securities of the Trust; and (vi) to prepare, execute and deliver
on behalf of the Trust any and all documents, certificates, papers,
instruments and other writings as it deems desirable in connection with any
of the foregoing.
In the event that any filing referred to in this Section 5 is required by
the rules and regulations of the Commission, an Exchange or state
securities or blue sky laws to be executed on behalf of the Trust by a
trustee, the Trustee, in its capacity as a trustee of the Trust, so
required to execute such filings is hereby authorized and directed to join
in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that the Trustee, in its capacity as a
trustee of the Trust, shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required to do so
by the rules and regulations of the Commission, an Exchange or applicable
state securities or blue sky laws.
6. The Trustee is authorized to take such action or refrain from taking such
action under this Trust Agreement as it may be directed in writing by the
Sponsor from time to time; provided, however, that the
Trustee shall not be required to take or refrain from taking any such
action if it shall have determined, or shall have been advised by counsel,
that such performance is likely to involve the Trustee in personal
liability or is contrary to the terms of this Trust Agreement or of any
document contemplated hereby to which the Trust or the Trustee is a party
or is otherwise contrary to law. If at any time the Trustee determines that
it requires or desires guidance regarding the application of any provision
of this Trust Agreement or any other document, or regarding compliance with
any direction it received hereunder, then the Trustee may deliver a notice
to the Sponsor requesting written instructions as to the course of action
desired by the Sponsor, and such instructions shall constitute full and
complete authorization and protection for actions taken and other
performance by the Trustee in reliance thereon. Until the Trustee has
received such instructions after delivering such notice, it may refrain
from taking any action with respect to the matters described in such
notice.
7. This Trust Agreement may be executed in one or more counterparts.
8. The number of trustees of the Trust initially shall be one (1) and
thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the
Sponsor which may increase or decrease the number of trustees of the Trust;
provided, however, to the extent required by the Business Trust Act, there
shall at all times be one trustee of the Trust that shall either be a
natural person who is a resident of the State of Delaware or, if not a
natural person, an entity which has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable
Delaware law. Subject to the foregoing, the Sponsor is entitled to appoint
or remove without cause any trustee of the Trust at any time. Any trustee
of the Trust may resign upon thirty days' prior notice to the Sponsor.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
COVANTA ENERGY CORPORATION,
as Sponsor
By: /s/ Louis M. Walters
________________________________
Name: Louis M. Walters
Title: Vice President and Treasurer
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ W. Thomas Moore, II
________________________________
Name: W. Thomas Moore, II
Title: Administrative Account Manager