EXHIBIT 4(at)
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AMENDED AND RESTATED
TRUST AGREEMENT
among
FPL GROUP, INC.,
as Depositor,
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE SEVERAL HOLDERS OF THE TRUST SECURITIES
Dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇ GROUP CAPITAL TRUST I
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FPL GROUP CAPITAL TRUST 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)
(b) ................................ 8.14(a)
(c) ................................ 8.14(a)
(d) ................................ 8.14(b)
Section 314(a) ................................ 8.15
(b) ................................ Not Applicable
(c)(1) ................................ 8.16
(c)(2) ................................ 8.16
(c)(3) ................................ Not Applicable
(d) ................................ Not Applicable
(e) ................................ 1.01
Section 315(a) ................................ 8.01, 8.03
(b) ................................ 8.02
(c) ................................ 8.01(a)
(d) ................................ 8.01, 8.03
(e) ................................ Not Applicable
Section 316(a) ................................ 6.01
(a)(1)(A) ................................ 6.01
(a)(1)(B) ................................ Not Applicable
(a)(2) ................................ Not Applicable
(b) ................................ Not Applicable
(c) ................................ 6.07
Section 317(a)(1) ................................ Not Applicable
(a)(2) ................................ Not Applicable
(b) ................................ 5.09
Section 318(a) ................................ 10.10
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions...............................................1
ARTICLE II
CONTINUATION OF THE TRUST
Section 2.01. Name.....................................................10
Section 2.02. Office of the Delaware Trustee; Principal Place of
Business.................................................11
Section 2.03. Initial Contribution of Trust Property;
Organizational Expenses..................................11
Section 2.04. Issuance of the Preferred Trust Securities...............11
Section 2.05. Subscription and Purchase of Debentures; Issuance
of the Common Trust Securities...........................11
Section 2.06. Declaration of Trust; Appointment of Additional
Administrative Trustees..................................11
Section 2.07. Authorization to Enter into Certain Transactions.........12
Section 2.08. Assets of Trust..........................................16
Section 2.09. Title to Trust Property..................................16
ARTICLE III
PAYMENT ACCOUNT
Section 3.01. Payment Account..........................................16
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.01. Distributions............................................16
Section 4.02. Redemption...............................................17
Section 4.03. Subordination of Common Trust Securities.................19
Section 4.04. Payment Procedures.......................................20
Section 4.05. Tax Returns and Reports..................................20
Section 4.06. Payments under Indenture.................................21
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ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01. Initial Ownership........................................21
Section 5.02. The Trust Securities Certificates........................21
Section 5.03. Execution and Delivery of Trust Securities
Certificates.............................................21
Section 5.04. Registration of Transfer and Exchange of Trust
Securities Certificates..................................21
Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates..................................22
Section 5.06. Persons Deemed Securityholders...........................23
Section 5.07. Access to List of Securityholders' Names and
Addresses................................................23
Section 5.08. Maintenance of Office or Agency..........................23
Section 5.09. Appointment of Paying Agent..............................24
Section 5.10. Ownership of Common Trust Securities by Depositor........24
Section 5.11. Definitive Preferred Trust Securities Certificates.......25
Section 5.12. Book-Entry System........................................25
Section 5.13. Rights of Securityholders................................26
Section 5.14. Cancellation by Transfer Agent and Registrar.............26
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01. Limitations on Voting Rights.............................26
Section 6.02. Notice of Meetings.......................................28
Section 6.03. Meetings of Holders of Preferred Trust Securities........28
Section 6.04. Voting Rights............................................28
Section 6.05. Proxies, etc.............................................28
Section 6.06. Securityholder Action by Written Consent.................29
Section 6.07. Record Date for Voting and Other Purposes................29
Section 6.08. Acts of Securityholders..................................29
Section 6.09. Inspection of Records....................................30
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY TRUSTEE
AND THE DELAWARE TRUSTEE
Section 7.01. Property Trustee.........................................30
Section 7.02. Delaware Trustee.........................................31
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ARTICLE VIII
THE TRUSTEES
Section 8.01. Certain Duties and Responsibilities......................32
Section 8.02. Notice of Defaults.......................................33
Section 8.03. Certain Rights of Property Trustee.......................34
Section 8.04. Not Responsible for Recitals or Issuance of Securities...36
Section 8.05. May Hold Securities......................................36
Section 8.06. Compensation; Fees; Indemnity............................36
Section 8.07. Certain Trustees Required; Eligibility...................37
Section 8.08. Conflicting Interests....................................37
Section 8.09. Co-Trustees and Separate Trustee.........................38
Section 8.10. Resignation and Removal; Appointment of Successor........39
Section 8.11. Acceptance of Appointment by Successor...................40
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business.................................................41
Section 8.13. Preferential Collection of Claims Against Depositor
or Trust.................................................41
Section 8.14. Reports by Property Trustee..............................42
Section 8.15. Reports to the Property Trustee..........................42
Section 8.16. Evidence of Compliance With Conditions Precedent.........42
Section 8.17. Number of Trustees.......................................42
Section 8.18. Delegation of Power......................................43
Section 8.19. Fiduciary Duty...........................................43
Section 8.20. Delaware Trustee.........................................44
ARTICLE IX
DISSOLUTION AND LIQUIDATION
Section 9.01. Dissolution Upon Expiration Date.........................44
Section 9.02. Early Dissolution........................................44
Section 9.03. Termination..............................................45
Section 9.04. Liquidation..............................................45
Section 9.05. Mergers, Consolidations, Amalgamations or
Replacements of the Trust................................47
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01. Payment of Expenses of the Trust.........................48
Section 10.02. Limitation of Rights of Securityholders..................48
Section 10.03. Amendment................................................48
Section 10.04. Separability.............................................49
Section 10.05. Governing Law............................................49
Section 10.06. Successors...............................................50
Section 10.07. Headings.................................................50
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Section 10.08. Notice and Demand........................................50
Section 10.09. Agreement Not to Petition................................50
Section 10.10. Conflict with Trust Indenture Act........................51
Section 10.11. Counterparts.............................................51
Exhibit A - Certificate of Trust of FPL Group Capital Trust I...............A-1
Exhibit B - Form of Certificate Evidencing Common Trust Securities..........B-1
Exhibit C - Form of Certificate Evidencing Preferred Trust Securities.......C-1
Exhibit D - Form of Agreement as to Expenses and Liabilities................D-1
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇,
▇▇▇▇▇ (▇) ▇▇▇ Group, Inc., a Florida corporation, as depositor (the
"Depositor"), (ii) The Bank of New York, a banking corporation duly organized
and existing under the laws of the State 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 the State of Delaware, as Delaware
trustee (the "Delaware Trustee"), (iv) ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
each an individual, and each of whose address is c/o FPL Group, Inc., ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (each, an "Administrative
Trustee" and collectively the "Administrative Trustees") (the Property Trustee,
the Delaware Trustee and the Administrative Trustees are referred to herein each
as a "Trustee" and collectively as the "Trustees"), and (v) the several Holders,
as hereinafter defined.
R E C I T A L S:
The Depositor, the Property Trustee, the Delaware Trustee and ▇▇▇▇ ▇.
▇▇▇▇▇▇, as Administrative Trustee, have heretofore duly created and continued a
statutory trust under the Delaware Statutory Trust Act by the entering into that
certain Trust Agreement, dated as of February 27, 2003 the "Original Trust
Agreement"), and by the execution and filing with the Secretary of State of the
State of Delaware of the Certificate of Trust of the Trust (as hereinafter
defined), dated February 27, 2003 (substantially in the form attached hereto as
Exhibit A and, as it may be amended from time to time, the "Certificate of
Trust").
The Trust, the Debenture Issuer (as defined below) and the Depositor
have entered into the Underwriting Agreement (as defined below).
The parties hereto desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Trust Securities, as hereinafter defined,
by the Trust to the Depositor, (ii) the issuance and sale of the Preferred Trust
Securities, as hereinafter defined, by the Trust, pursuant to the Underwriting
Agreement, and (iii) the acquisition by the Trust from the Debenture Issuer, as
hereinafter defined, of all of the right, title and interest in the Debentures,
as hereinafter defined.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
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 I
DEFINED TERMS
SECTION 1.01. DEFINITIONS. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(ii) 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;
(iii) 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
(iv) 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 for a given period, the amount of Additional Interest (as
defined in the Subordinated Indenture) paid by the Debenture Issuer 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
his or her capacity as Administrative Trustee of the Trust formed and continued
hereunder and not in his or her individual capacity, or such trustee's successor
in interest in such capacity, or any successor trustee appointed as herein
provided.
"ADVERSE TAX CONSEQUENCE" means any of the circumstances described in
clauses (i), (ii) and (iii) of the definition of "Tax Event" herein.
"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.
"AGREEMENT AS TO EXPENSES AND LIABILITIES" means the Agreement as to
Expenses and Liabilities, dated March 15, 2004, between FPL Group, Inc., in its
capacities as Depositor and Debenture Guarantor, and the Trust, as amended and
supplemented from time to time, substantially in the form attached as Exhibit D.
"AUTHORIZED OFFICER" means the Chairman of the Board, the President,
any Vice President, the Treasurer, any Assistant Treasurer or any other officer
or agent of the Depositor duly authorized by the Board of Directors of the
Depositor to act in respect of matters relating to this Trust Agreement.
"BANK" has the meaning specified in the preamble to this Trust
Agreement.
"BANKRUPTCY EVENT" means, with respect to any Person:
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(i) the entry of a decree or order by a court having jurisdiction
in the premises judging such Person a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of such
Person under Federal bankruptcy law or any other applicable Federal or
state law, or appointing a custodian, 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 90 consecutive days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or of the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under Federal bankruptcy law or any other applicable Federal
or state law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other 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.
"BUSINESS DAY" means a day other than (x) a Saturday or a Sunday, (y)
a day on which banks in The City of New York, New York or Florida 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 the recitals
hereof.
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"CLOSING DATE" means the date of execution and 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 Trust Agreement 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 TRUST SECURITY" means a security representing an undivided
beneficial ownership 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, Debentures and a Liquidation
Distribution as provided herein.
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"COMMON TRUST SECURITIES CERTIFICATE" means a certificate evidencing
ownership of Common Trust Securities, substantially in the form attached as
Exhibit B.
"CORPORATE TRUST OFFICE" means the corporate trust office of the
Property Trustee at which, at any particular time, its corporate trust business
shall be principally administered, which office at the date hereof is located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"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 with respect to the Debentures.
"DEBENTURE GUARANTOR" means FPL Group, Inc., a Florida corporation, in
its capacity as guarantor of the Debentures, and its successors.
"DEBENTURE ISSUER" means FPL Group Capital Inc, a Florida corporation,
in its capacity as issuer of the Debentures, and its successors.
"DEBENTURE REDEMPTION DATE" means "Redemption Date" as defined in the
Subordinated Indenture with respect to the Debentures.
"DEBENTURE TRUSTEE" means The Bank of New York, a New York banking
corporation, as trustee under the Subordinated Indenture, and its permitted
successors and assigns as such trustee.
"DEBENTURES" means $309,278,350 aggregate principal amount of the
Debenture Issuer's 5 7/8% Junior Subordinated Debentures, Series due March 15,
2044 issued pursuant to the Subordinated Indenture and guaranteed by the
Debenture Guarantor.
"DEFINITIVE PREFERRED TRUST SECURITIES CERTIFICATES" means Preferred
Trust Securities Certificates issued in certificated, fully registered form as
provided in Section 5.11.
"DELAWARE STATUTORY TRUST ACT" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. ▇.▇▇. 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 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 and includes FPL Group, Inc., in its capacity as Holder of the Common
Trust Securities, and its successors.
"DISTRIBUTION DATE" has the meaning specified in Section 4.01(a).
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"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:
(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 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 90 days after
there has been given, by registered or certified mail, to the Trust,
the defaulting trustee, and the Depositor by the Holders of at least
33% in Liquidation Amount of the Outstanding Preferred Trust
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; unless Holders in Liquidation Amount of
Outstanding Preferred Trust Securities not less than the Liquidation
Amount of Outstanding Preferred Trust Securities the Holders of which
gave such notice, shall agree in writing to an extension of such
period prior to its expiration; provided, however, that the Holders of
such Liquidation Amount of Outstanding Preferred Trust Securities
shall be deemed to have agreed to an extension of such period if
corrective action is initiated by the Trustees within such period and
is being diligently pursued in good faith; or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"EXPIRATION DATE" shall have the meaning specified in Section 9.01.
"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 ACT" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
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"INVESTMENT COMPANY EVENT" means the receipt by the Trust, the
Depositor or the Debenture Issuer of an Opinion of Counsel to the effect that,
as a result of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority after March 3, 2004, there is
more than an insubstantial risk that the Trust is or will be considered an
investment company under the Investment Company Act.
"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
Holders to which 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 dissolution and
liquidation of the Trust pursuant to Section 9.04.
"LIQUIDATION DISTRIBUTION" has the meaning specified in Section
9.04(e).
"OFFER" has the meaning specified in Section 2.07(c).
"OFFICER'S CERTIFICATE" means a certificate signed by an Authorized
Officer of the Depositor and delivered to the appropriate Trustee. Any Officer's
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(i) a statement that the officer signing the Officer's
Certificate has read the covenant or condition and the definitions
relating thereto;
(ii) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officer's
Certificate;
(iii) a statement that 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
(iv) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
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"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, or an employee of any thereof, and who shall be reasonably acceptable
to the Property Trustee. Any Opinion of Counsel delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include statements comparable to the statements referred to in the
definition of "Officer's Certificate" herein. Any Opinion of Counsel relating to
income tax matters may rely on published opinions of the Internal Revenue
Service.
"ORIGINAL TRUST AGREEMENT" has the meaning specified in the recitals
to this Trust Agreement.
"OUTSTANDING," when used with respect to Preferred Trust Securities,
means, as of the date of determination, all Preferred Trust Securities
theretofore delivered under this Trust Agreement, except:
(i) Preferred Trust Securities theretofore canceled by the
Transfer Agent and Registrar or delivered to the Transfer Agent and
Registrar for cancellation;
(ii) Preferred Trust 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
Trust Securities (or provision therefor satisfactory to the Property
Trustee has been made); provided that, if such Preferred Trust
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement (or provision therefor
satisfactory to the Property Trustee has been made); and
(iii) Preferred Trust Securities which have been paid or in
exchange for or in lieu of which other Preferred Trust 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 Trust Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Trust Securities owned, whether of record or beneficially, by the
Depositor, the Trust Securities Guarantor, any Administrative Trustee or any
Affiliate of the Depositor, the Trust Securities Guarantor or any Administrative
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 Trust 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 Trust Securities are owned by the Depositor, the Trust
Securities Guarantor, one or more of the Administrative Trustees and/or any such
Affiliate. Preferred Trust Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Administrative Trustees the pledgee's right so to act with
respect to such Preferred Trust Securities and that the pledgee is not the
Depositor or the Trust Securities Guarantor, or any Affiliate of the Depositor
or the Trust Securities Guarantor.
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"OWNER" means each Person who is the beneficial owner of a Trust
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 Property Trustee.
"PAYMENT ACCOUNT" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee with the Bank, or such other
banking institution as the Depositor shall select 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 a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof or any other entity of whatever nature.
"PREFERRED TRUST SECURITY" means a security representing an undivided
beneficial ownership 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, Debentures and a Liquidation
Distribution as provided herein and, in certain circumstances, a preference over
the Common Trust Securities.
"PREFERRED TRUST SECURITIES CERTIFICATE" means a certificate
evidencing ownership of Preferred Trust Securities, substantially in the form
attached as Exhibit C.
"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 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.
"RELEVANT TRUSTEE" shall have the meaning specified in Section 8.10.
"RESPONSIBLE OFFICER," when used with respect to the Property Trustee,
means an officer of the Property Trustee assigned by the Property Trustee to
administer its corporate trust matters.
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"SECURITIES DEPOSITORY" shall have the meaning specified in Section
5.12. The Depository Trust Company will be the initial Securities Depository.
"SECURITIES REGISTER" shall mean the Securities Register as 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 a beneficial owner of such security within the meaning of the Delaware
Statutory Trust Act.
"SUBORDINATED INDENTURE" means the Indenture (For Unsecured
Subordinated Debt Securities relating to Trust Securities), dated as of March 1,
2004, among the Debenture Issuer, the Debenture Guarantor, as guarantor, and the
Debenture Trustee, as trustee, as amended or supplemented from time to time.
"TAX EVENT" means the receipt by the Trust, the Depositor or the
Debenture Issuer of an Opinion of Counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, clarification of, or change
(including any announced prospective change) in the laws or treaties (or any
regulations thereunder) of the United States or any political subdivision or
taxing authorities thereof or therein; (b) any judicial decision or any official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement (including any notice or announcement of intent to issue or adopt
any such administrative pronouncement, ruling, regulatory procedure or
regulation) (each, an "Administrative Action"), or (c) any amendment to,
clarification of, or change in the official position or the interpretation of
any such Administrative Action or judicial decision or any interpretation or
pronouncement that provides for a position with respect to such Administrative
Action or judicial decision that differs from the theretofore generally accepted
position, in each case by any legislative body, court, governmental authority or
regulatory body, irrespective of the time or manner in which such amendment,
clarification or change is introduced or made known, which amendment,
clarification, or change is effective, or which Administrative Action is taken
or which judicial decision, interpretation or pronouncement is issued, in each
case after March 3, 2004, there is more than an insubstantial risk that (i) the
Trust is, or will be, subject to United States Federal income tax with respect
to interest received on the Debentures, (ii) interest payable by the Debenture
Issuer on the Debentures is not, or will not be, fully deductible by the
Debenture Issuer for United States Federal income tax purposes, or (iii) the
Trust is, or will be, subject to more than a de minimis amount of other taxes,
duties or other governmental charges..
"TRANSFER AGENT AND REGISTRAR" shall mean the transfer agent and
registrar for the Preferred Trust Securities appointed by the Trust and shall be
initially the Property Trustee.
"TRUST" means the Delaware statutory trust created by the Original
Trust Agreement and the filing of the Certificate of Trust 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 (i) all exhibits hereto and (ii) for all
purposes of this Amended and Restated Trust Agreement and any such modification,
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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 amended
and in force at the date as of which this Trust Agreement 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 terms of this Trust Agreement.
"TRUST SECURITIES CERTIFICATE" means any one of the Common Trust
Securities Certificates or the Preferred Trust Securities Certificates.
"TRUST SECURITIES GUARANTEE" means the Preferred Trust Securities
Guarantee Agreement executed and delivered by the Trust Securities Guarantor, as
guarantor 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 Trust Securities, as amended from
time to time.
"TRUST SECURITIES GUARANTOR" means FPL Group, Inc., a Florida
corporation, and its successors, as guarantor under the Trust Securities
Guarantee.
"TRUST SECURITY" means any one of the Common Trust Securities or the
Preferred Trust Securities. The Common Trust Securities and the Preferred Trust
Securities represent the sole beneficial interests in the Trust, and the Trust
shall not issue any interests other than the Trust Securities.
"TRUSTEES" mean, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated as of
March 3, 2004, among the Trust, FPL Group, Inc., FPL Group Capital Inc and the
underwriters named therein.
ARTICLE II
CONTINUATION OF THE TRUST
SECTION 2.01. NAME. The Trust continued hereby shall be known as "FPL
Group Capital Trust I", as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
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business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.02. OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF
BUSINESS. The office of the Delaware Trustee in the State of Delaware is ▇/▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ (Delaware), ▇▇▇▇▇ ▇▇▇▇ Center, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other address in Delaware as the Delaware Trustee may
designate by written notice to the Securityholders, the Depositor and the Trust
Securities Guarantor. The principal place of business of the Trust is c/o FPL
Group, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 2.03. INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of ten dollars
($10.00), 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 2.04. ISSUANCE OF THE PREFERRED TRUST SECURITIES. On March 3,
2004, an authorized representative of the Depositor, the Debenture Issuer and
the Trust, each 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 and delivered a Preferred Trust Securities Certificate,
registered in the name of the nominee of The Depository Trust Company, having an
aggregate Liquidation Amount of $300,000,000.
SECTION 2.05. SUBSCRIPTION AND PURCHASE OF DEBENTURES; ISSUANCE OF THE
COMMON TRUST SECURITIES. Contemporaneously with the execution and delivery of
this Trust Agreement, the Administrative Trustees, on behalf of the Trust,
subscribed to and purchased from the Debenture Issuer Debentures, registered in
the name of the Property Trustee and having an aggregate principal amount equal
to $309,278,350 and, in satisfaction of the purchase price for such Debentures,
(x) the Depositor, on behalf of the Trust and in exchange for a Common Trust
Securities Certificate executed and delivered by one of the Administrative
Trustees, on behalf of the Trust and registered in the name of the Depositor,
representing 371,134 Common Trust Securities having an aggregate Liquidation
Amount of $9,278,350, delivered to the Debenture Issuer $9,278,350 representing
proceeds from the sale of the Common Trust Securities, and (y) the Underwriters,
on behalf of the Trust, delivered to the Debenture Issuer the sum of
$300,000,000 representing the proceeds from the sale of the Preferred Trust
Securities pursuant to the Underwriting Agreement.
SECTION 2.06. DECLARATION OF TRUST; APPOINTMENT OF ADDITIONAL
ADMINISTRATIVE TRUSTEES. The exclusive purposes and functions of the Trust are,
and the Trust shall have power and authority, and is hereby authorized and
empowered without the need for any further action, (i) to issue and sell Trust
Securities and invest the proceeds thereof in Debentures, and (ii) to engage in
those activities necessary or incidental thereto. The Depositor hereby appoints
the Trustees as trustees of the Trust, to have all the rights, powers and duties
to the extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
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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(a)
of the Delaware Statutory Trust Act.
SECTION 2.07. AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS. (a)
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Trust Agreement. Subject to the limitations set forth in paragraph (b)
of this Section and Article VIII and in accordance with the following provisions
(A) and (B), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(A) As among the Trustees, the Administrative Trustees, acting singularly
or together, shall have the power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(i) the issuance and sale of the Trust Securities pursuant to the
Underwriting Agreement;
(ii) without the consent of any Person, to cause the Trust to
enter into and to execute, deliver and perform on behalf of the Trust,
such agreements as may be necessary or desirable in connection with
the consummation of the Underwriting Agreement;
(iii) the qualification of the Trust to do business in any
jurisdiction as may be necessary or desirable;
(iv) the registration of the Preferred Trust 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;
(v) the listing, if any, of the Preferred Trust Securities upon
such national securities exchange or exchanges or automated quotation
system or systems as shall be determined by the Depositor and the
registration of the Preferred Trust Securities under the Exchange Act,
and the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(vi) the appointment or removal of a Paying Agent and Transfer
Agent and Registrar in accordance with this Trust Agreement;
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(vii) establishing a record date with respect to all actions to
be taken hereunder that require a record date to be established,
including for the purposes of Section 316(c) of the Trust Indenture
Act and with respect to Distributions, voting rights, redemptions, and
exchanges, and issuance of relevant notices to Holders of the Trust
Securities as to such actions;
(viii) the due preparation and filing of all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust on behalf of the Trust;
(ix) all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory trust under the laws
of the State of Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of the Holders
of the Trust Securities or to enable the Trust to effect the purposes
for which the Trust was created;
(x) the acquisition of the Debentures with the proceeds of the
sale of the Trust Securities; provided, however, the Administrative
Trustees shall cause legal title to all of the Debentures to be vested
in, and the Debentures to be held of record in the name of, the
Property Trustee for the benefit of the Trust and the Holders of the
Trust Securities;
(xi) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware;
(xii) the delivery of the certificate to the Property Trustee
required by Section 314(a)(4) of the Trust Indenture Act, which
certificate may be executed by any Administrative Trustee;
(xiii) 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);
(xiv) all actions and performance of such duties as may be
required of the Administrative Trustees pursuant to the terms of this
Trust Agreement; and
(xv) the execution and delivery of all documents or instruments,
the performance of all duties and powers, and the doing of all things
for and on behalf of the Trust in all matters necessary or incidental
to the foregoing;
(B) As among the Trustees, the Property Trustee shall have the power, duty
and authority to act on behalf of the Trust with respect to the following
ministerial matters:
(i) the establishment of the Payment Account;
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(ii) the receipt of and holding of legal title to the Debentures;
(iii) the collection and deposit in the Payment Account of
interest, principal and any other payments made in respect of the
Debentures;
(iv) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities in accordance with the terms of this
Trust Agreement;
(v) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with the terms of this Trust Agreement;
(vi) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(vii) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust and 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;
(viii) the taking of any ministerial action incidental to the
foregoing as the Property Trustee may from time to time determine is
necessary or advisable to protect and conserve the Trust Property for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder); and
(ix) the taking of all actions and performing such duties as may
be required of the Property Trustee pursuant to the terms of this
Trust Agreement.
Subject to this Section 2.07(a)(B), the Property Trustee shall have
none of the duties, powers or authority of the Administrative Trustees set forth
in Sections 2.07(a)(A) and 2.07(c) 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, subject to the terms of this Trust Agreement, and, if an
Event of Default occurs and is continuing, the Property Trustee may, for the
benefit of Holders of the Trust Securities, in its discretion, proceed to
protect and enforce its rights as holder of the Debentures subject to the rights
of the Holders pursuant to the terms of this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the Trust (or
the Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees, acting on behalf of the Trust, 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 reasonably be expected to cause the Trust to fail or cease to qualify
as a "grantor trust" for United States Federal income tax purposes, (iv) incur
any indebtedness for borrowed money or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Trustees shall defend all claims and demands of all Persons at any time claiming
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any Lien on any of the Trust Property adverse to the interest of the Trust or
the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Trust
Securities, each of the Depositor and the Administrative Trustees, acting
singularly or together, shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission and to
execute and file a registration statement on Form S-3 in relation to
the Preferred Trust Securities, including any amendments thereto and
to take any action necessary or desirable to sell the Preferred Trust
Securities in a transaction or series of transactions pursuant
thereto;
(ii) to determine the states in which to take appropriate action
to qualify or register for sale all or part of the Preferred Trust
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 in connection with the sale of Preferred Trust Securities;
(iii) 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 Trust Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Trust Securities under Section 12(b) of the Exchange Act,
including any amendments thereto;
(v) to select the investment banker or bankers to act as
underwriters with respect to the offer and sale by the Trust of
Preferred Trust Securities ("Offer") and negotiate the terms of an
Underwriting Agreement and pricing agreement providing for the Offer;
(vi) 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; and
(vii) to take any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are hereby authorized and directed to conduct the
affairs of the Trust and to operate the Trust so that (i) the Trust will not be
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deemed to be an "investment company" required to be registered under the
Investment Company Act, (ii) the Trust will not be classified other than as a
"grantor trust" for United States Federal income tax purposes and (iii) the
Debentures will be treated as indebtedness of the Debenture Issuer for United
States Federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, 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 Trust
Securities.
SECTION 2.08. ASSETS OF TRUST. The assets of the Trust shall consist
of the Trust Property.
SECTION 2.09. TITLE TO TRUST PROPERTY. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
SECTION 3.01. PAYMENT ACCOUNT. (a) On or prior to the Closing Date,
the Property Trustee shall establish the Payment Account. The Property Trustee
and any 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 have no liability in any respect whatsoever in regards to any moneys or
other property deposited in the Payment Account at an institution other than the
Property Trustee.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.01. DISTRIBUTIONS. (a) Distributions on the Trust Securities
shall be cumulative, and will accumulate whether or not there are funds of the
Trust available for the payment of Distributions. Distributions shall accrue
from the Closing Date, and, except in the event (and to the extent) that the
Debenture Issuer exercises its right to extend the interest payment period for
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the Debentures pursuant to Section 312 of the Subordinated Indenture, shall be
payable quarterly in arrears on March 15, June 15, September 15, and December 15
of each year, commencing on June 15, 2004. 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 Distributions shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each date on which Distributions are payable in accordance with this
Section 4.01(a), a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of 5 7/8% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any quarterly period shall be computed on
the same basis as interest is calculated on the Debentures under Section 310 of
the Subordinated Indenture. If the interest payment period for the Debentures is
extended pursuant to Section 312 of the Subordinated Indenture, then
Distributions on the Trust 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. Such deferred Distributions
shall be paid to the Holders of Trust Securities in whose names such Trust
Securities are registered on the relevant record date for such Distributions
specified in Section 4.01(d) hereof. Upon receipt of the notice from the
Debenture Issuer of its election to extend the interest payment period, the
Property Trustee shall give written notice of such extension and the deferral of
the related Distribution on the Trust Securities in the manner provided in
Section 10.08. The amount of Distributions payable for any period shall include
the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
funds legally available in the Payment Account for the payment of such
Distributions.
(d) Distributions (including Additional Amounts, if any) on the Trust
Securities with respect to a Distribution Date shall be payable to the Holders
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be one Business Day prior to the relevant
Distribution Date, if Trust Securities are in book-entry only form, and 15 days
prior to the relevant Distribution Date if Trust Securities are not in
book-entry only form.
SECTION 4.02. REDEMPTION. (a) On each Debenture Redemption Date and at
the maturity date ("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 Redemption Date or Maturity Date, as the case may be.
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(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price and the amount of accumulated and
unpaid Distributions to the Redemption Date to be paid on the
Redemption Date;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price plus
accumulated and unpaid Distributions to the Redemption Date will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accrue on and after such
date; and
(vi) if the Preferred Trust Securities are no longer held in
book-entry only form, the place and address where the Holders shall
surrender their Preferred Trust Securities Certificates.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price plus accumulated and unpaid Distributions to
the Redemption Date 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 Redemption Date shall be
deemed payable on each Redemption Date only to the extent that the Trust has
funds legally and immediately available in the Payment Account for such payment.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Trust Securities, then on or prior to the Redemption Date, subject
to Section 4.02(c), the Property Trustee shall irrevocably deposit with the
Paying Agent funds sufficient to pay the applicable Redemption Price plus
accumulated and unpaid Distributions to the Redemption Date and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
plus accumulated and unpaid Distributions to the Redemption Date to the Holders
thereof upon surrender of their Preferred Trust Securities Certificates and
Common Trust Securities Certificates. Notwithstanding the foregoing,
Distributions on the Trust Securities with respect to Distribution Dates
occurring 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 Redemption Date thereof,
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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 Redemption 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), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date. In the event
that payment of the Redemption Price plus accumulated and unpaid Distributions
to the Redemption Date in respect of any Trust Securities called for redemption
is improperly withheld or refused and not paid either by the Trust or by the
Trust Securities Guarantor pursuant to the Trust Securities 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.
(e) 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 Redemption Date.
(f) Subject to Section 4.03(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated to the
Common Trust Securities and to the Preferred Trust Securities in the proportion
that the aggregate Liquidation Amount of each is to the aggregate Liquidation
Amount of all outstanding Trust Securities. The particular Preferred Trust
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 Trust
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 redemption of portions (equal to $25 or integral multiples thereof) of the
Liquidation Amount of Preferred Trust Securities of a denomination larger than
$25. The Property Trustee shall promptly notify the Transfer Agent and Registrar
in writing of the Preferred Trust Securities selected for redemption and, in the
case of any Preferred Trust 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 Trust Securities shall relate, in the case of any
Preferred Trust Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Preferred Trust Securities which has been
or is to be redeemed.
(g) Subject to the foregoing provisions of this Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Depositor or its Affiliates may, at any time and from time to time,
purchase outstanding Preferred Trust Securities by tender, in the open market or
by private agreement.
SECTION 4.03. SUBORDINATION OF COMMON TRUST SECURITIES. (a) Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price plus accumulated and unpaid Distributions to the Redemption
Date 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
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any Distribution Date or Redemption Date an Event of Default resulting from a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution (including Additional Amounts, if applicable) on, or Redemption
Price plus accumulated and unpaid Distributions to the Redemption Date of, any
Common Trust Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Trust 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 Trust
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 to the Redemption Date the full amount of such Redemption Price
plus accumulated and unpaid Distributions to the Redemption Date on all
Outstanding Preferred Trust 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 to the Redemption Date of, Preferred Trust Securities then
due and payable.
(b) In the case of the occurrence of any Event of Default resulting
from a Debenture Event of Default, the Holder of the Common Trust Securities
will be deemed to have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Trust Securities has been cured, waived or
otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Preferred Trust Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall, to the fullest
extent permitted by law, act solely on behalf of the Holders of the Preferred
Trust Securities and not the Holder of the Common Trust Securities, and only the
Holders of the Preferred Trust Securities will have the right to direct the
Property Trustee to act on their behalf.
SECTION 4.04. PAYMENT PROCEDURES. Payments in respect of the Preferred
Trust 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 Trust Securities are held by a Securities Depository, such
Distributions shall be made to the Securities Depository in immediately
available funds, which shall credit the relevant Persons' accounts at such
Securities Depository on the applicable Distribution Dates. Payments in respect
of the Common Trust Securities shall be made in such manner as shall be mutually
agreed between the Property Trustee and the Holder of the Common Trust
Securities.
SECTION 4.05. TAX RETURNS AND REPORTS. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense and
direction, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared 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 the extent required by law, to each Securityholder the related
Internal Revenue Service Form 1099 (or any successor form) and 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
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and information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.
SECTION 4.06. PAYMENTS UNDER INDENTURE. Any amount payable hereunder
to any Holder of Preferred Trust Securities shall be reduced by the amount of
any corresponding payment such Holder has directly received pursuant to Section
808 of the Subordinated Indenture.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.01. 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 5.02. THE TRUST SECURITIES CERTIFICATES. The Trust Securities
Certificates shall be issued in denominations of $25 Liquidation Amount and
integral multiples thereof. 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, the Preferred Trust Securities shall be countersigned by the Transfer
Agent and Registrar or its agent. Trust Securities Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust
and, in the case of Preferred Trust Securities, if executed by facsimile
signature, countersigned by the Transfer Agent and Registrar 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
5.12. Every Person, by virtue of having become a Securityholder, shall be deemed
to have expressly assented and agreed to the terms of, and shall be bound by,
this Trust Agreement, the Trust Securities Guarantee and the Subordinated
Indenture.
SECTION 5.03. EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.
On the Closing Date, the Administrative Trustees, or any one of them, 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 Trust Securities executed by facsimile signature,
countersigned by the Transfer Agent and Registrar, or its agent, and delivered
to or upon the written order of the Depositor signed by an Authorized Officer of
the Depositor, without further corporate action by the Depositor, in authorized
denominations.
SECTION 5.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
SECURITIES CERTIFICATES. The Transfer Agent and Registrar shall keep or cause to
be kept, at the office or agency maintained pursuant to Section 5.08, a
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Securities Register in which, subject to such reasonable regulations as it may
prescribe, the Transfer Agent and Registrar shall provide for the registration
of Preferred Trust Securities Certificates and the Common Trust Securities
Certificates (subject to Section 5.10 in the case of the Common Trust Securities
Certificates) and registration of transfers and exchanges of Preferred Trust
Securities Certificates and Common Trust Securities (subject to Section 5.10 in
the case of the Common Trust Securities Certificates) as herein provided. The
Property Trustee shall be the initial Transfer Agent and Registrar.
Upon surrender for registration of transfer of any Preferred Trust
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 the Transfer Agent and Registrar or its
agent to countersign and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Trust Securities Certificates in
authorized denominations of a like aggregate Liquidation Amount. At the option
of a Holder, Preferred Trust Securities Certificates may be exchanged for other
Preferred Trust Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Amount upon surrender of the Preferred
Trust Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.08.
Every Preferred Trust 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
the Transfer Agent and Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Preferred Trust Securities Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Transfer Agent and Registrar in accordance with
its customary procedures. The Trust shall not be required to (i) issue, register
the transfer of, or exchange any Preferred Trust 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 Trust 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 Trust Securities so
selected for redemption, in whole or in part, except the unredeemed portion of
any such Preferred Trust Securities being redeemed in part.
No service charge shall be made for any registration of transfer or
exchange of Preferred Trust Securities Certificates, but the Transfer Agent and
Registrar 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 Trust Securities Certificates.
SECTION 5.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Transfer Agent and Registrar, or if the Transfer Agent and
Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Trust Securities Certificate and (b) there shall be delivered to
the Transfer Agent and Registrar 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
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signature and, if execution on behalf of the Trust is by facsimile signature, in
the case of Preferred Trust Securities shall also cause the Transfer Agent and
Registrar or its agent to countersign; and the Administrative Trustees, or any
one of them, and, if executed on behalf of the Trust by facsimile signature, in
the case of Preferred Trust Securities the Transfer Agent and Registrar or its
agent, 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 and Registrar 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 undivided beneficial interest in the Trust Property, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Trust Securities Certificates.
SECTION 5.06. PERSONS DEEMED SECURITYHOLDERS. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees and the Transfer Agent and Registrar, and any agent of the Trustees and
the Transfer Agent and Registrar, shall be entitled to treat the Person in whose
name any Trust Securities Certificate shall be registered in the Securities
Register as the absolute owner of such Trust Securities Certificate for the
purpose of receiving Distributions and for all other purposes whatsoever, and
neither the Trustees nor the Transfer Agent and Registrar shall be bound by any
notice to the contrary.
SECTION 5.07. ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES.
The Administrative Trustees shall furnish or cause to be furnished (x) to the
Depositor or the Property Trustee, within 30 days after receipt by any
Administrative Trustee of a request therefor from the Depositor or the Property
Trustee, as the case may be, in writing and (y) to the Property Trustee,
semiannually on June 1, and December 1 of each year beginning June 1, 2004, a
list, in such form as the Depositor or the Property Trustee, as the case may be,
may reasonably require, of the names and addresses of the Securityholders as of
a recent date and the Property Trustee shall preserve such information and
similar information received by it in any other capacity and afford to the
Holders access to information so preserved by it, all to such extent, if any,
and in such manner as shall be required by the Trust Indenture Act; provided
that the Administrative Trustees shall not be obligated to provide such list at
any time such list does not differ from the most recent list given to the
Depositor and the Property Trustee by the Administrative Trustees or at any time
the Property Trustee is the Transfer Agent and Registrar. Each Holder, by
receiving and holding a Trust Securities Certificate, shall be deemed to have
agreed not to hold either the Depositor or any Trustees accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 5.08. MAINTENANCE OF OFFICE OR AGENCY. The Depositor shall or
shall cause the Transfer Agent and Registrar to maintain in The City of New
York, an office or offices or agency or agencies where Preferred Trust
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Depositor, the Trust or
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the Transfer Agent and Registrar in respect of the Trust Securities and the
Trust Agreement may be served. The Depositor initially designates The Bank of
New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its principal
office for such purposes. The Depositor shall or shall cause the Transfer Agent
and Registrar to give prompt written notice to the Depositor, the Trust
Securities Guarantor, the Property Trustee, the Administrative Trustees and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency. If at any time the Depositor shall fail to maintain
such office or agency or shall fail to furnish the Property Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Property Trustee, and the
Depositor hereby appoints the Property Trustee its agent and the agent of the
Trust to receive all such presentations, surrenders, notices and demands.
SECTION 5.09. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Administrative Trustees and the Property
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions referred to
above. The Property Trustee shall be entitled to rely upon a certificate of the
Paying Agent stating in effect the amount of such funds so to be withdrawn and
that same are to be applied by the Paying Agent in accordance with this Section
5.09. The Administrative Trustees or any one of them may revoke such power and
remove the Paying Agent 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 shall initially be the Property Trustee, and it may choose any
co-paying agent that is acceptable to the Administrative Trustees, the Debenture
Issuer, and the Depositor. The Paying Agent shall be permitted to resign upon 30
days' written notice to the Administrative Trustees, the Property Trustee, the
Debenture Issuer and the Depositor. In the event of the removal or resignation
of the Property Trustee as Paying Agent, the Administrative Trustees shall
appoint a successor that is reasonably acceptable to the Property Trustee, the
Debenture Issuer 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 5.10. OWNERSHIP OF COMMON TRUST SECURITIES BY DEPOSITOR. On
the Closing Date, the Depositor shall acquire, and thereafter retain, beneficial
and record ownership of the Common Trust Securities. Except in connection with a
transaction involving the Depositor that would be permitted under Article Eleven
of the Subordinated Indenture, any attempted transfer of the Common Trust
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Securities shall, to the fullest extent permitted by law, be void. The
Administrative Trustees shall cause each Common Trust Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT." Common Trust Securities
Certificates representing the Common Trust Securities shall be issued to the
Depositor in the form of a typewritten or definitive Common Trust Securities
Certificate.
SECTION 5.11. DEFINITIVE PREFERRED TRUST SECURITIES CERTIFICATES.
Definitive Preferred Trust 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 and Registrar or its agent,
the Definitive Preferred Trust Securities Certificates initially in accordance
with the instructions of the Depositor complying with Section 5.03. Neither the
Transfer Agent and Registrar 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 5.12. BOOK-ENTRY SYSTEM. Some or all of the Preferred Trust
Securities may be registered in the name of a securities depository ("Securities
Depository") or a nominee therefor, and held in the custody of the Securities
Depository or a custodian thereof. In such event, a single certificate will be
issued and delivered to the Securities Depository for such Preferred Trust
Securities, in which case the Owners of such Preferred Trust Securities will not
receive physical delivery of certificates for Preferred Trust Securities. Unless
Definitive Preferred Trust Securities Certificate are delivered to the Owners of
Preferred Trust Securities as provided herein, all transfers of beneficial
ownership interests in such Preferred Trust Securities will be made by
book-entry only, and no investor or other party purchasing, selling or otherwise
transferring beneficial ownership of the Preferred Trust Securities will
receive, hold or deliver any certificate for Preferred Trust Securities. The
Depositor, the Trustees and the Paying Agent will recognize the Securities
Depository or its nominee as the Holder of Preferred Trust Securities for all
purposes, including payment, notices and voting and shall have no payment,
notice or communication obligations to the Owners.
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
Trust 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 Trust Securities with
respect to required notices and other provisions of the letter of
representations or agreement executed with respect to such Preferred Trust
Securities.
Whenever the beneficial ownership of any Preferred Trust Securities is
determined through the books of a Securities Depository, the requirements in
this Trust Agreement of holding, delivering or transferring such Preferred Trust
Securities shall be deemed modified with respect to such Preferred Trust
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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 Trust Securities
shall, while such Preferred Trust 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.
Definitive Preferred Trust Securities Certificates will be issued and
delivered to the Owners of such Preferred Trust Securities in accordance with
registration instructions of the Securities Depository if (a) the Securities
Depository is no longer willing or able to properly discharge its
responsibilities with respect to the Preferred Trust Securities, and the
Depositor does not appoint a successor Securities Depository within 90 days
after such discontinuance, or (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Securities Depository.
SECTION 5.13. 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 ownership 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 Trust 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 undivided
beneficial interests in the assets of the Trust. Under the Trust Agreement and
the Delaware Statutory Trust Act, the issuance of the Preferred Trust Securities
is not subject to preemptive rights.
SECTION 5.14. CANCELLATION BY TRANSFER AGENT AND REGISTRAR. All Trust
Securities Certificates surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Transfer
Agent and Registrar, be delivered to the Transfer Agent and Registrar and, if
not theretofore canceled, shall be promptly canceled by the Transfer Agent and
Registrar. No Trust Securities Certificates shall be issued in lieu of or in
exchange for any Trust Securities Certificates canceled as provided in this
Section, except as expressly permitted by this Trust Agreement. All canceled
Trust Securities Certificates held by the Transfer Agent and Registrar shall be
disposed of in accordance with its customary procedures.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. LIMITATIONS ON VOTING RIGHTS. (a) Except as provided in
Sections 6.01, 8.10 and 10.03 and as otherwise required by law, no Holder of
Preferred Trust 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
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Debentures or this Trust Agreement, a Holder of Preferred Trust Securities may,
to the fullest extent permitted by law, institute a legal proceeding directly
against the Depositor, as guarantor under the Subordinated Indenture, or the
Debenture Issuer, as the case may be, to enforce the Property Trustee's rights
under the Debentures or this Trust Agreement, subject to all the provisions
thereof including restrictions relating to such rights, without first
instituting any legal proceeding against the Property Trustee or any other
Person. Notwithstanding the foregoing, a Holder of Preferred Trust Securities
may directly institute a proceeding for enforcement of payment to such Holder of
principal of or interest on the Debentures having a principal amount equal to
the aggregate liquidation preference amount of the Preferred Trust Securities of
such Holder on or after the due dates specified in the Debentures. The Depositor
shall be subrogated to all rights of the Holders of Preferred Trust Securities
in respect of any amounts paid to such Holders by virtue of this Section 6.01.
(b) So long as any Debentures are held by the Property Trustee, the
Property Trustee 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 a majority of
the aggregate Liquidation Amount of the Outstanding Preferred Trust 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 the Property Trustee without the prior written consent
of each Holder of Preferred Trust Securities. The Property Trustee shall not
revoke any action previously authorized or approved by a vote of the Preferred
Trust Securities, except pursuant to a subsequent vote of the Preferred Trust
Securities. The Property Trustee shall notify all Holders of the Preferred Trust
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 Trust 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 such
action will not cause the Trust to be classified other than as a "grantor trust"
for United States Federal income tax purposes.
(c) Except as provided in Section 10.03, 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 Holders of the Outstanding Preferred Trust 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 Trust
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 majority in aggregate Liquidation Amount of the
Outstanding Preferred Trust Securities.
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(d) The Holders of a majority in Outstanding Liquidation Amount of the
Preferred Trust Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee in respect of this Trust Agreement or the Debentures or exercising any
trust or power conferred upon the Property Trustee under this Trust Agreement;
provided, however, that, subject to Section 8.01, the Property Trustee shall
have the right to decline to follow any such direction if the Property Trustee
being advised by counsel determines that the action so directed may not lawfully
be taken, or if the Property Trustee in good faith shall, by a Responsible
Officer or Officers of the Property Trustee, determine that the proceedings so
directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders not party to such direction, and provided
further that nothing in this Trust Agreement shall impair the right of the
Property Trustee to take any action deemed proper by the Property Trustee and
which is not inconsistent with such direction.
SECTION 6.02. NOTICE OF MEETINGS. Notice of all meetings of the
Holders of Preferred Trust 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 Trust Security, at such Holder's 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 6.03. MEETINGS OF HOLDERS OF PREFERRED TRUST 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
Trust Securities (based upon their aggregate Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Trust Securities to vote on
any matters as to which the Holders of Preferred Trust Securities are entitled
to vote.
Holders of at least a majority of the then Outstanding Preferred Trust
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 Trust Securities present, in person or by proxy, holding at
least a majority of the then Outstanding Preferred Trust Securities (based upon
their aggregate Liquidation Amount) present, either in person or by proxy, at
such meeting shall constitute the action of the Securityholders, unless this
Trust Agreement requires a greater number of affirmative votes.
SECTION 6.04. VOTING RIGHTS. Securityholders shall be entitled to one
vote for each $25 of Liquidation Amount represented by their Outstanding Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
SECTION 6.05. PROXIES, ETC. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
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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. No proxy shall be valid more
than three years after its date of execution.
SECTION 6.06. SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting and without prior notice if Securityholders holding 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 6.07. RECORD DATE FOR VOTING AND OTHER PURPOSES. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or to vote by written consent without prior notice, 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 including action
to be taken by written consent, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.08. ACTS OF SECURITYHOLDERS. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to 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
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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 Trust 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 6.09. INSPECTION OF RECORDS. Subject to Section 5.07
concerning access to the list of Securityholders, upon reasonable notice to the
Administrative Trustees and the Property Trustee, the other records of the Trust
shall be open to inspection by any Securityholder during normal business hours
for any purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE PROPERTY
TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 7.01. PROPERTY TRUSTEE. The Property Trustee and any successor
Property Trustee hereby represents and warrants for the benefit of the Depositor
and the Securityholders that:
(a) the Property Trustee is a banking corporation, trust company or
national association duly incorporated, validly existing and in good standing
under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
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(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Property Trustee of
this Trust Agreement do not require any approval of stockholders of the Property
Trustee and will not (i) violate, conflict with or constitute a breach of the
Property Trustee's charter or by-laws, or (ii) violate any law, governmental
rule or regulation of the State of New York or the United States of America
governing the banking or trust powers of the Property Trustee or any order,
judgment or decree applicable to the Property Trustee; and
(e) the execution, delivery and performance by the Property Trustee of
this Trust Agreement does not require the consent or approval of, the giving of
notice to, or the registration with or the taking of any other action with
respect to any governmental authority or agency under any Federal or state
banking authority having jurisdiction over its trust powers.
SECTION 7.02. DELAWARE TRUSTEE. The Delaware Trustee and any successor
Delaware Trustee represents and warrants for the benefit of the Depositor and
the Securityholders that:
(a) the Delaware Trustee is a banking corporation, trust company or
national association duly incorporated, validly existing and in good standing
under the laws of the State of Delaware;
(b) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Delaware Trustee and constitutes the valid and legally binding
agreement of the Delaware Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the Delaware Trustee is 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, in either case, a Person that
satisfies for the Trust the requirements of Section 3807(a) of the Delaware
Statutory Trust Act;
(e) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement do not require any approval of stockholders of the Delaware
Trustee and will not (i) violate, conflict with or constitute a breach of the
Delaware Trustee's charter or by-laws or (ii) violate any law, governmental rule
or regulation of the State of Delaware or the United States of America governing
the banking or trust powers of the Delaware Trustee or any order, judgment or
decree applicable to the Delaware Trustee; and
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(f) the execution, delivery and performance by the Delaware Trustee of
this Trust Agreement does not require the consent or approval of, the giving of
notice to, or the registration with or the taking of any other action with
respect to any governmental authority or agency under any Federal or state
banking authority having jurisdiction over its banking or trust powers.
ARTICLE VIII
THE TRUSTEES
SECTION 8.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) The rights,
immunities, duties and responsibilities of the Trustees shall be restricted to
those set forth in the express provisions of this Trust Agreement and, in the
case of the Property Trustee, as provided in the Trust Indenture Act, and no
implied covenants or obligations shall be read into this Trust Agreement against
any of the Trustees. For purposes of Sections 315(a) and 315(c) of the Trust
Indenture Act, the term "default" is hereby defined as an Event of Default which
has occurred and is continuing. 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. 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 and the applicable provisions
of the Trust Indenture Act. To the extent that, at law or in equity, an
Administrative Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, such Administrative
Trustee shall not be liable to the Trust or to any Securityholder for such
Trustee's 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 the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the income and proceeds
from the Trust Property and only to the extent that there shall be sufficient
income or proceeds from the Trust Property to enable the Property Trustee or
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) Subject to the provisions of the Trust Indenture Act, all duties
and responsibilities of the Property Trustee contained in this Trust Agreement
are subject to the following:
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(i) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Trust Property shall be
to deal with such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to the
protections, exculpations and limitations on liability afforded to the
Property Trustee under this Trust Agreement, the Trust Indenture Act,
the Delaware Statutory Trust Act and, to the extent applicable, Rule
3a-7 under the Investment Company Act or any successor rule
thereunder;
(ii) the Property Trustee shall have no duty or liability for or
with respect to the value, genuineness, existence or sufficiency of
the Trust Property or the payment of any taxes or assessments levied
thereon or in connection therewith;
(iii) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree with the
Depositor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Payment Account
established by the Property Trustee pursuant to this Trust Agreement
and except to the extent otherwise required by law; and
(iv) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the
Administrative Trustees or the Depositor.
(d) The Administrative Trustees shall not be responsible for
monitoring the compliance by the other Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall any Administrative
Trustee be liable for the default or misconduct of any other Administrative
Trustee, the other Trustees or the Depositor.
SECTION 8.02. NOTICE OF DEFAULTS. (a) Within ninety (90) days after
the occurrence of any default known to the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.08, notice of such default to the Securityholders, the Depositor and the
Administrative Trustees, unless such default shall have been cured or waived
before the giving of such notice, provided that, except in the case of a payment
default, the Property Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors or Responsible Officers of the Property Trustee in good
faith determines that the withholding of such notice is in the interests of the
Holders. 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.
(b) Within five Business Days after receipt of notice of the Debenture
Issuer's exercise of its right to defer the payment of interest on the
Debentures pursuant to the Subordinated Indenture, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.08, notice of
such exercise to the Securityholders and the Administrative Trustees, unless
such exercise shall have been revoked.
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SECTION 8.03. CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the
provisions of Section 8.01 and except as provided by law, including the Trust
Indenture Act:
(i) 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;
(ii) 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 conclusively rely upon an Officer's Certificate which,
upon receipt of such request, shall be promptly delivered by the
Depositor or the Administrative Trustees;
(iii) the Property Trustee may consult with counsel of its
selection (which counsel may be counsel to the Property Trustee,
Depositor or the Trust Securities Guarantor or any of their
Affiliates, and may include any of their employees) 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 and in accordance with such advice;
(iv) 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 Securityholder pursuant
to this Trust Agreement, unless such Securityholder 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; provided that, nothing contained in this Section
8.03(iv) shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(v) 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, 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;
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(vi) 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;
(vii) 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;
(viii) the Property Trustee shall not be charged with knowledge
of any default or Event of Default with respect to the Trust
Securities unless either (A) a Responsible Officer of the Property
Trustee shall have actual knowledge of the default or Event of Default
or (B) 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;
(ix) 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;
(x) 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;
(xi) 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;
(xii) 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 (A) may request instructions from the
Holders of the Trust Securities, which instructions may only be given
by the Holders of the same 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,
(B) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (C) shall be
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protected in acting in accordance with such instructions; and
(xiii) unless otherwise expressly provided herein, any direction
or act of the Depositor contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officer's Certificate.
SECTION 8.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the title to, or value or condition of, the property of the Trust or any part
thereof, nor as to the validity or sufficiency of this Trust Agreement, the
Debentures 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.
SECTION 8.05. MAY HOLD SECURITIES. Any Trustee or any agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.08 and 8.13, and
except as provided in the definition of the term "Outstanding" in Article I, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such agent.
SECTION 8.06. COMPENSATION; FEES; INDEMNITY. The Depositor agrees:
(i) to pay to the Trustees from time to time such reasonable
compensation as shall be agreed in writing with the Depositor 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);
(ii) 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 their agents and
counsel), except any such expense, disbursement or advance as may be
attributable to their negligence (gross negligence, in the case of any
Administrative Trustee), bad faith or willful misconduct; and
(iii) to the fullest extent permitted by applicable law, 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 or the Delaware Trustee), bad faith or willful
misconduct on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts under 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.
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No Trustee may claim any Lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.06.
In addition to the rights provided to each Trustee pursuant to the
provisions of the immediately preceding paragraph of this Section 8.06 and
without prejudice to any rights available to the Trustees under applicable law,
when a Trustee incurs expenses or renders services in connection with an Event
of Default resulting from a Bankruptcy Event with respect to the Trust, the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement.
SECTION 8.07. CERTAIN TRUSTEES REQUIRED; ELIGIBILITY. (a) There shall
at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a Person that has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware that
otherwise meets the requirements of applicable Delaware law and that shall act
through one or more persons authorized to bind such entity.
SECTION 8.08. CONFLICTING INTERESTS. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement. To the extent permitted by the
Trust Indenture Act, the Property Trustee shall not be deemed to have
conflicting interest by virtue of being trustee under the Indenture, dated as of
June 1, 1999, between the Debenture Issuer and The Bank of New York, as trustee,
the Guarantee Agreement, dated as of June 1, 1999, between the Depositor and The
Bank of New York, as guarantee trustee, the Purchase Contract Agreement, dated
as of February 1, 2002 between the Depositor and The Bank of New York, as
purchase contract agent, attorney-in-fact and trustee, the Purchase Contract
Agreement, dated as of June 1, 2002 between the Depositor and The Bank of New
York, as purchase contract agent, attorney-in-fact and trustee, the Preferred
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Trust Securities Guarantee Agreement and the Subordinated Indenture and such
agreements and the securities of any series issued under any of the foregoing
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 8.09. CO-TRUSTEES AND SEPARATE TRUSTEE. 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 Administrative Trustees, by agreed action of the
majority of such Trustees (except as provided in the following sentence), shall
have power to appoint, and upon the written request of the Administrative
Trustees, the Depositor shall for such purpose join with the Administrative
Trustees 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 a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(1) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees designated for such purpose hereunder,
shall be exercised, solely by such Trustees.
(2) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(3) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section 8.09, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
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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 any 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 hereunder.
(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 8.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No
resignation or removal of any Trustee (as the case may be, the "Relevant
Trustee") and no appointment of a successor Relevant Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Relevant Trustee in accordance with the applicable requirements of
Section 8.11.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders, the Depositor and the other Trustees, except
that notice is only required to be delivered to the Securityholders in the event
that the Property Trustee or the Delaware Trustee is the resigning Relevant
Trustee. If the instrument of acceptance by a successor Relevant Trustee
required by Section 8.11 shall not have been delivered to the resigning 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 Holder
of the Common Trust Securities. If a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee or the Delaware Trustee, or
both of them, may be removed at such time by Act of the Holders of a majority of
the aggregate Liquidation Amount of the Outstanding Preferred Trust Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust). An Administrative Trustee may be appointed, replaced or removed
solely by the Holder of the Common Trust Securities at any time.
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 Holder of the Common Trust
Securities, by Act of the Holder of the Common Trust Securities delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the retiring Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If the Property Trustee or the Delaware Trustee
shall resign, be removed or become incapable of continuing to act as the
Property Trustee or the Delaware Trustee, as the case may be, at a time when a
Debenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Trust Securities, by Act of the Holders of Preferred Trust Securities
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of a majority in aggregate Liquidation Amount of the Outstanding Preferred Trust
Securities delivered to such retiring Trustee, shall promptly appoint a
successor Relevant Trustee or Trustees, and such successor shall comply with the
applicable requirements of Section 8.11. If an Administrative Trustee shall
resign, be removed or become incapable of acting as Administrative Trustee, at a
time when a Debenture Event of Default shall have occurred and be continuing,
the Holder of the Common Trust Securities by Act of the Holder of the Common
Trust Securities delivered to the Administrative Trustees shall promptly appoint
a successor Administrative Trustee or Trustees and such successor Administrative
Trustee or Trustees shall comply with the applicable requirements of Section
8.11. If no successor Relevant Trustee shall have been so appointed by the
Holder of the Common Trust Securities or the Holders of Preferred Trust
Securities and accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust Securities 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 Property Trustee shall give notice of each resignation and each
removal of a Property Trustee or Delaware Trustee and each appointment of a
successor to such Trustee to all Securityholders in the manner provided in
Section 10.08 and shall give notice to the Depositor. Such notice shall include
the name of the successor Relevant Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.
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 in the opinion of the Depositor, 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).
No Trustee shall be liable for the acts or omissions to act of any
successor Trustee.
SECTION 8.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee (if requested by the Depositor) and each successor Trustee shall execute
and deliver an amendment hereto wherein each successor Relevant Trustee shall
accept such appointment and which 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 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,
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on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall, upon payment of all sums owed to it, 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 preceding paragraph.
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 8.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Person into which the Property Trustee or the Delaware Trustee or
any Administrative 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,
the giving of any notice or any further act on the part of any of the parties
hereto.
SECTION 8.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR
TRUST. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Debentures or the Trust
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
Trust (or any such other obligor). For purposes of Section 311(b) of the Trust
Indenture Act:
(a) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) the term "self-liquidating paper" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Depositor or the Trust (or any such obligor) for the purpose of financing
the purchase, processing, manufacturing, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is received by the
Property Trustee simultaneously with the creation of the creditor relationship
with the Depositor or the Trust (or any such obligor) arising from the making,
drawing, negotiating or incurring of the draft, ▇▇▇▇ of exchange, acceptance or
obligation.
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SECTION 8.14. REPORTS BY PROPERTY TRUSTEE. (a) The Property Trustee
shall transmit to Securityholders such reports concerning the Property Trustee
and its actions under this Trust Agreement as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
Such of those reports as are required to be transmitted by the Property Trustee
pursuant to Section 313(a) of the Trust Indenture Act shall be dated as of the
next preceding April 15, and shall be transmitted no later than July 15 of each
year, commencing July 15, 2004.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Property Trustee with each national exchange, the
Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, if any, with the Commission and with the Depositor. The Depositor will
notify the Property Trustee of any such listing or trading.
SECTION 8.15. REPORTS TO THE PROPERTY TRUSTEE. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information, if any, and the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act, in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, provided that such compliance certificate shall be delivered
annually on or before April 1 in each year, beginning April 1, 2005. Any officer
signing an Officer's Certificate given pursuant to this Section 8.15 shall be
the principal executive, financial or accounting officer of the Depositor.
Delivery of such reports, information and documents by the Depositor to the
Property Trustee is for informational purposes only and the Property Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Depositor's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officer's Certificates).
SECTION 8.16. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each
of the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement (including any covenants
compliance with which constitutes a condition precedent) that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of an Officer's
Certificate.
SECTION 8.17. NUMBER OF TRUSTEES. (a) The number of Trustees shall be
four (4), provided that the Depositor, by written instrument, may increase or
decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of
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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 Trust 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 8.18. DELEGATION OF POWER. (a) Any Administrative Trustee may,
by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Sections 2.07(a) and 2.07(c), including any
registration statement or amendment thereto filed with the Commission, or making
any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 8.19. FIDUCIARY DUTY. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Trust Agreement shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the duties imposed on
the Property Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person;
(b) Unless otherwise expressly provided herein and subject to the
provisions of the Trust Indenture Act:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Trust Securities, the
Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative
interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices
or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the
Indemnified Person shall not constitute a breach of this Trust
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Agreement or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise;
and
(c) Unless otherwise expressly provided herein and subject to the
provisions of the Trust Indenture Act, whenever in this Trust Agreement an
Indemnified Person is permitted or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it reasonably desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this Trust
Agreement or by applicable law.
SECTION 8.20. DELAWARE TRUSTEE. It is expressly understood and agreed
by the parties hereto that in fulfilling its obligations as Delaware Trustee
hereunder on behalf of the Trust (i) any agreements or instruments executed and
delivered by The Bank of New York (Delaware) are executed and delivered not in
its individual capacity but solely as Delaware Trustee under this Trust
Agreement in the exercise of the powers and authority conferred and vested in
it, (ii) each of the representations, undertakings and agreements herein made on
the part of the Trust is made and intended not as representations, warrants,
covenants, undertakings and agreements by The Bank of New York (Delaware) in its
individual capacity but is made and intended for the purpose of binding only the
Trust, and (iii) under no circumstances shall The Bank of New York (Delaware) in
its individual capacity be personally liable for the payment of any indebtedness
or expenses of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaking by the
Trust under this Trust Agreement, except if such breach or failure is due to any
gross negligence or willful misconduct of the Delaware Trustee.
ARTICLE IX
DISSOLUTION AND LIQUIDATION
SECTION 9.01. DISSOLUTION UPON EXPIRATION DATE. Unless earlier
dissolved, the Trust shall automatically dissolve on December 31, 2050 (the
"Expiration Date") and the Trustees shall take such action as is required by
Section 9.04.
SECTION 9.02. EARLY DISSOLUTION. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"):
(i) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(ii) the redemption of all of the Preferred Trust Securities;
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(iii) an order for judicial dissolution of the Trust having been
entered by a court of competent jurisdiction;
(iv) the election by the Depositor to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, to cause the distribution of the
Debentures to the Holders of the Preferred Trust Securities and Common
Trust Securities in liquidation of the Trust;
the Trust shall dissolve and the Trustees shall take such action as is required
by Section 9.04.
SECTION 9.03. TERMINATION. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (i) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02 or 9.04(d), of all amounts required to be distributed hereunder upon the
final payment of the Trust Securities; (ii) the payment of any expenses owed by
the Trust; and (iii) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. LIQUIDATION. (a) Upon the Expiration Date or if an Early
Termination Event specified in clause (i), (iii) 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:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 9.04(e) applies, receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee
shall deem appropriate.
(b) Except where Sections 9.02(ii) or 9.04(e) or the first sentence of
9.04(d) apply, in order to effect the liquidation of the Trust hereunder, and
any resulting distribution of the Debentures to Securityholders, the
Administrative Trustees 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.
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(c) Except where Sections 9.02(ii) or 9.04(e) or the first sentence of
9.04(d) apply, 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, after satisfaction of liabilities to creditors of the Trust,
if any, as provided by applicable law, 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 Securities 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, after satisfaction of liabilities to creditors of
the Trust, if any, as provided by applicable law, Debentures upon surrender of
Trust Securities Certificates.
(d) If at any time a Tax Event shall occur and be continuing, and
either (i) in the Opinion of Counsel to the Trust or the Depositor experienced
in such matters, there would in all cases, after effecting the dissolution of
the Trust, after satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, and the distribution of the Debentures to the
Holders of the Preferred Trust Securities in exchange therefor, be more than an
insubstantial risk that an Adverse Tax Consequence would continue to exist or
(ii) the Debentures are not held by the Trust, then the Debenture Issuer shall
have the right to redeem the Debentures, in whole but not in part, at any time
within 90 days following the occurrence of the Tax Event. Whether or not a Tax
Event has occurred, the Depositor has the right, at any time, to dissolve the
Trust and, after satisfaction of liabilities to creditors of the Trust, if any,
as provided by applicable law, cause the Debentures to be distributed to the
Holders of the Preferred Trust Securities and Common Trust Securities in
liquidation of the Trust.
(e) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution 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
wound-up, by the Property Trustee in such manner as the Property Trustee
determines. In such event, 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 winding up, 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 the Common Trust Securities will be
entitled to receive Liquidation Distributions upon any such winding-up pro rata
(determined as aforesaid) with Holders of Preferred Trust Securities, except
that, if a Debenture Event of Default (or event that with the lapse of time or
giving of notice would become an Event of Default) has occurred and is
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continuing, the Preferred Trust Securities shall have a priority over the Common
Trust Securities.
SECTION 9.05. MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS
OF THE TRUST. The Trust may not merge, consolidate, amalgamate with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person, except pursuant to this
Section 9.05. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of any Holders of the Preferred
Trust Securities, the Property Trustee or the Delaware Trustee, the Trust may
merge, consolidate, amalgamate, with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of the
Trust with respect to the Preferred Trust Securities or (b) substitutes for the
Preferred Trust Securities other securities having substantially the same terms
as the Preferred Trust Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Preferred Trust Securities rank in
priority with respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) a trustee of such successor entity possessing substantially
the same powers and duties as the Property Trustee is appointed to hold the
Debentures, (iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred Trust
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Trust Securities (including any Successor Securities) to be downgraded
by any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Trust Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel experienced in such matters to the effect that (a) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Trust Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act and (viii) the Depositor or its permitted transferee owns
all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Trust Securities Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of all the
Preferred Trust Securities, consolidate, amalgamate or merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other Person to consolidate,
amalgamate or merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. PAYMENT OF EXPENSES OF THE TRUST. Pursuant to the
Agreement as to Expenses and Liabilities, the Debenture Guarantor has agreed to
pay to the Trust, and reimburse the Trust for, the full amount of any costs,
expenses or liabilities of the Trust (other than obligations of the Trust to pay
the Holders of any Preferred Trust Securities or Common Trust Securities),
including, without limitation, any taxes, duties or other governmental charges
of whatever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority. Such payment obligation includes
any such costs, expenses or liabilities of the Trust that are required by
applicable law to be satisfied in connection with a termination of the Trust.
SECTION 10.02. LIMITATION OF RIGHTS OF SECURITYHOLDERS. The death,
incapacity, bankruptcy, dissolution or termination of any Person having an
interest, beneficial or otherwise, in a Trust Security shall not operate to
terminate this Trust Agreement, nor dissolve, terminate or annul the Trust, 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 10.03. AMENDMENT. (a) In addition to amendments contemplated
by Section 8.11, this Trust Agreement may be amended from time to time by 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, (ii) to change the name of the
Trust or (iii) 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" 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; provided, however, that such action in any of
clauses (i) - (iii) shall not adversely affect in any material respect the
interests of any Securityholder and, in the case of clause (i), any such
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Sections 6.01(c) and 10.03(c), any provision
of this Trust Agreement may be amended by the Administrative Trustees and the
Depositor with (i) the consent of Holders of Trust Securities representing not
less than a majority (based upon Liquidation Amounts) of the Outstanding Trust
Securities and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for Federal income tax purposes or the Trust's exemption from
status as an "investment company" under the Investment Company Act.
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(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) adversely change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date, (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date or (iii) modify
the provisions of this clause (c).
(d) Notwithstanding any other provisions of this Trust Agreement, 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" for United States Federal
income tax purposes or would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act afforded by Rule 3a-5 thereunder.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
the Depositor and the Trustees may, but shall not be obligated to, enter into
any amendment which imposes any additional obligation on the Depositor or any
Trustee or, in the case of the Trustees, which affects any of their respective
rights, duties or immunities hereunder.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
(g) The Property Trustee and the Delaware Trustee may join in the
execution of any amendment to the Trust Agreement and are entitled to rely upon
an Opinion of Counsel as conclusive evidence that any amendment to this Trust
Agreement entered into 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 accept the additional trusts created thereby and, if so
requested, for the Property Trustee or Delaware Trustee to join in the execution
thereof.
SECTION 10.04. SEPARABILITY. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST, THE DEPOSITOR, THE TRUST
SECURITIES GUARANTOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND
THE TRUST SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES,
EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER JURISDICTION ARE MANDATORILY
APPLICABLE.
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SECTION 10.06. SUCCESSORS. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to the Depositor, the Trust
Securities Guarantor, the Trust or the Relevant Trustees or any of them,
including any successor by operation of law.
SECTION 10.07. HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.08. NOTICE AND DEMAND. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (i) in the case of a Holder of Preferred Trust Security, to such
Holder as such Holder's name and address may appear on the Securities Register,
and (ii) in the case of the Depositor, the Holder of the Common Trust Securities
or the Trust Securities Guarantor, to FPL Group, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ (until another address
is given to the Property Trustee). 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 facsimile 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 given to
the other parties hereto) as follows: (i) with respect to the Property Trustee,
to The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, with a copy to The Bank of New York Trust Company,
N.A., 10161, Centurion Parkway, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇, (ii) with respect to the Delaware Trustee, to The Bank of New York
(Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with copies to
the Property Trustee at the address set forth in (i) above, Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇ and The Bank of New York Trust Company, N.A., 10161, Centurion Parkway,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, and (iii) with respect to
the Trust or the Administrative Trustees, at the address above for notice to the
Depositor, marked "Attention: Administrative Trustees for FPL Group Capital
Trust I". Such notice, demand or other communication to or upon the Trust, the
Delaware Trustee or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust,
the Delaware Trustee or the Property Trustee.
SECTION 10.09. AGREEMENT NOT TO PETITION. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, 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
-50-
should be estopped 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 10.10. CONFLICT WITH TRUST INDENTURE ACT. (a) This Trust
Agreement is subject to the provisions of the Trust Indenture Act that are
required or deemed to be part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act, such
required or deemed provision shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing interests in the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER, 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.
SECTION 10.11. COUNTERPARTS. This Trust Agreement may contain more
than one counterpart of the signature page and this Trust Agreement may be
executed by the affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
-51-
IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Trust Agreement to be duly executed, all as of the day and year first above
written.
FPL GROUP, INC.,
as Depositor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer and Assistant Secretary
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Sr. Vice President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustee
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
as Administrative Trustee
-52-
EXHIBIT A
CERTIFICATE OF TRUST
OF
FPL GROUP CAPITAL TRUST I
This Certificate of Trust of FPL Group Capital Trust I (the "Trust"),
dated February 27, 2003, is being duly executed and filed by the undersigned, as
trustees, to form a statutory trust under the Delaware Statutory Trust Act (12
Del. C. ss. 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust being formed hereby is
FPL Group Capital Trust 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
is The Bank of New York (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. Effective Date. This Certificate of Trust shall be effective
upon filing with the Secretary of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in
one or more counterparts.
[SIGNATURE PAGE FOLLOWS]
A-1
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust in accordance with Section 3811(a)(1) of
the Act.
THE BANK OF NEW YORK
(DELAWARE), not in its individual
capacity but solely as trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK, not in its
individual capacity but solely as trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, not in his individual
capacity but solely as trustee
A-2
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS
PROVIDED IN THE TRUST AGREEMENT
Certificate Number Number of Common Trust Securities
C -
Certificate Evidencing Common Trust Securities
of
FPL Group Capital Trust I
Common Trust Securities
(liquidation amount $ 25 per Common Trust Security)
FPL Group Capital Trust I, a statutory trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that FPL Group, Inc. (the
"Holder") is the registered owner of _____ common securities of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the FPL Group Capital Trust I Common Trust Securities (liquidation
amount $25 per Common Trust Security) (the "Common Trust Securities"). Except as
permitted by Section 5.10 of the Trust Agreement (as defined below), the Common
Trust 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 Trust Securities are set forth in, and this
certificate and the Common Trust 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 March 15, 2004, as the same
may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Trust Securities as set forth therein.
Capitalized terms used herein but not defined shall have the meaning
given them in 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.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Trust
Securities as evidence of undivided beneficial interests in the assets of the
Trust.
B-1
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust this ___ day of
________, _____.
FPL GROUP CAPITAL TRUST I
By:
-------------------------------------------
not in his individual capacity, but solely
as Administrative Trustee
B-2
EXHIBIT C
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO FPL GROUP CAPITAL
TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Certificate Number Number of Preferred Trust Securities
P-
CUSIP NO.
Certificate Evidencing Preferred Trust Securities
of
FPL Group Capital Trust I
5 7/8% Preferred Trust Securities
(liquidation amount $25 per Preferred Trust Security)
FPL Group Capital Trust I, a statutory 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 FPL Group Capital Trust I 5 7/8% Preferred Trust Securities
(liquidation amount $25 per Preferred Trust Security) (the "Preferred Trust
Securities"). The Preferred Trust 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 5.12 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Trust Securities are set forth in, and this
certificate and the Preferred Trust 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 March 15, 2004, as the same
may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Preferred Trust Securities as set forth therein.
Capitalized terms used herein but not defined shall have the meaning
given them in the Trust Agreement. The holder of this certificate is entitled to
the benefits of the Preferred Trust Securities Guarantee Agreement of FPL Group,
Inc. and The Bank of New York, as guarantee trustee, dated as of March 15, 2004,
as the same may be amended from time to time (the "Guarantee Agreement"), to the
extent provided therein. The Trust will furnish a copy of the Trust Agreement
and the Guarantee Agreement to the Holder without charge upon written request to
the Trust at its principal place of business or registered office.
C-1
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Trust
Securities as evidence of undivided beneficial interests in the assets of the
Trust.
IN WITNESS WHEREOF, an Administrative Trustee of the Trust has
executed this certificate for and on behalf of the Trust this ___ day of
________, ____.
FPL GROUP CAPITAL TRUST I
By:
-------------------------------------------
not in his individual capacity, but solely
as Administrative Trustee
[Countersigned and] Registered:
-------------------------------,
THE BANK OF NEW YORK, as
Transfer Agent and Registrar
By:
-------------------------------------------
(Authorized Signature)
C-2
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Trust Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
of the Preferred Trust Securities represented by this Certificate and
irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
attorney to transfer such Preferred Trust 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 Trust
Securities Certificate)
Signature: ________________________
(Sign exactly as your name appears on the other side of this Preferred Trust
Securities Certificate)
C-3
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT, dated as of March 15, 2004 (this "Agreement"), by and
between FPL Group, Inc., a Florida corporation ("FPL Group"), and FPL Group
Capital Trust I, a Delaware statutory trust (the "Trust").
WHEREAS, the Trust intends to issue its common trust securities (the
"Common Trust Securities") to FPL Group and receive junior subordinated
debentures ("Debentures") from FPL Group Capital Inc ("FPL Group Capital")
guaranteed on a subordinated basis by FPL Group and issue its trust preferred
securities (the "Preferred Trust Securities") to the public 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 March 15, 2004, by and
among FPL Group, as depositor, and the Trustees named therein, as the same may
be amended from time to time (the "Trust Agreement");
WHEREAS, FPL Group Capital, the issuer of the Debentures, is a
wholly-owned subsidiary of FPL Group;
NOW, THEREFORE, in consideration of the acceptance of the Preferred
Trust Securities by each holder thereof, which acceptance FPL Group hereby
agrees shall benefit FPL Group and FPL Group Capital and which acceptance FPL
Group acknowledges will be made in reliance upon the execution and delivery of
this Agreement, FPL Group, including in its capacity as Debenture Guarantor, and
the Trust hereby agree as follows:
ARTICLE I
Section 1.01. Definitions. Each capitalized term used herein and not
otherwise defined herein shall have the definition of that term in the Trust
Agreement.
Section 1.02. Assumption by FPL Group. Subject to the terms and
conditions hereof, FPL Group 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 obligations
of the Trust to pay to holders of any Preferred Trust Securities and Common
Trust Securities the amounts due such holders pursuant to the terms of the
Preferred Trust Securities, the Common Trust Securities, the Subordinated
Indenture (including Article Fourteen thereunder) or the Preferred Trust
Securities Guarantee Agreement referenced below, as the case may be. This
Agreement is intended to be for the sole benefit of, and to be enforceable by,
all such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.03. 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 Trust Securities or any Beneficiary must restore payment of any sums
paid under the Preferred Trust Securities, under any Obligation, under the
D-1
Preferred Trust Securities Guarantee Agreement dated the date hereof by and
between FPL Group 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 1.04. Waiver of Notice. FPL Group hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and FPL Group hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.05. No Impairment. The obligations, covenants, agreements
and duties of FPL Group 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.
Neither the Trust nor any Beneficiary shall have any obligation to give notice
to, or obtain the consent of, FPL Group with respect to the happening of any of
the foregoing.
Section 1.06. Enforcement. A Beneficiary may enforce this Agreement
directly against FPL Group, and FPL Group waives any right or remedy to require
that any action be brought against the Trust or any other person or entity
before proceeding against FPL Group.
ARTICLE II
Section 2.01. Binding Effect. All of the obligations, covenants and
agreements contained in this Agreement shall bind the successors, assigns,
receivers, trustees and representatives of FPL Group and shall inure to the
benefit of the Beneficiaries and their successors and assigns.
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Preferred Trust Securities of any series shall be outstanding, this
Agreement shall not be modified or amended in any manner adverse to such
Beneficiary or to the holders of the Preferred Trust 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
-55-
(confirmed by mail) or by registered or certified mail, addressed as follows
(and if so given, shall be deemed given when mailed), to wit:
FPL Group Capital Trust I
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇, Administrative Trustee
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FPL Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 2.04. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE LAWS OF ANY OTHER
JURISDICTION ARE MANDATORILY APPLICABLE.
Section 2.05. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
[SIGNATURE PAGE FOLLOWS]
D-3
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES is executed in New York,
New York as of the day and year first above written.
FPL GROUP, INC.
By:
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer and Assistant Secretary
FPL GROUP CAPITAL TRUST I
By:
------------------------------------------
not in his individual capacity, but solely
as Administrative Trustee