Exhibit 4.4(b)
TRUST AGREEMENT
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This TRUST AGREEMENT, dated as of March 22, 1999 (this "Trust Agreement"),
among (i) FLORIDA PROGRESS FUNDING CORPORATION, a Delaware corporation (the
"Depositor"), (ii) FIRST CHICAGO DELAWARE INC., a Delaware corporation (the
"Delaware Trustee"), and (iii) THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association (the "Property Trustee") (collectively with the Delaware
Trustee, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "FPC
CAPITAL II" in which name the Trustees, or the Depositor to the extent provided
herein, may engage in the transactions contemplated hereby, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets over to
the Trust the sum of $10. The Trustees hereby acknowledge receipt of such
amount from the Depositor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate for
the Depositor. It is the intention of the parties hereto that the Trust created
hereby constitutes a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor, the Trustees and certain other trustees to be
hereafter appointed 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 of
the Preferred Securities, or QUIPS, and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery of any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the Depositor of the Trust, (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, relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the Preferred
Securities of the Trust and certain other securities, (b) any Prospectus or
Preliminary Prospectus relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) 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 the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock 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 Depositor, on behalf of the Trust, may deem necessary or desirable and
(iv) to execute on behalf of the Trust that certain Underwriting Agreement
relating to the Preferred Securities, among the Trust, the Depositor, Florida
Progress Corporation, a Florida corporation, and the several Underwriters named
therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In connection with the filings referred to above, the
Depositor hereby constitutes and appoints Kenneth E. Armstrong, Pamela A. Saari,
Richard Korpan, Edward W. Moneypenny, Kathleen M. Haley, John Scardino, Jr. and
Douglas E. Wentz, as its true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the Depositor or in the
Depositor's name, place and stead, in its capacity as Depositor of the Trust, to
sign any and all amendments (including post-effective amendments) to the 1933
Act Registration Statement and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and any other documents in connection
therewith, with the Commission, the Exchange and administrators of state
securities or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee 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
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. 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).
8. The Delaware Trustee shall not have any of the powers or duties
of the Trustees set forth herein, except as required under the Business Trust
Act. The Delaware Trustee shall be a Trustee hereunder for the sole and limited
purpose of fulfilling the requirements of (S) 3807(a) of the Business Trust Act.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
FLORIDA PROGRESS FUNDING CORPORATION,
as Depositor
/s/ Edward W. Moneypenny
By: _______________________________________
Signed
this 20th day of March, 1999, in the City of
Atlanta, the State of Georgia
FIRST CHICAGO DELAWARE INC., as Trustee
/s/ Steven M. Wagner
By: _______________________________________
THE FIRST NATIONAL BANK OF CHICAGO, as
Trustee
/s/ Steven M. Wagner
By: _______________________________________
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