Exhibit 4(k)
------------
AMENDED AND RESTATED
TRUST AGREEMENT
among
CP&L ENERGY, INC.
as Depositor,
_____________________________________
as Property Trustee,
and
______________________________________________
as Delaware Trustee
Dated as of ____________________, 200_
____________________________
CP&L ENERGY CAPITAL TRUST __
____________________________
TABLE OF CONTENTS
-----------------
ARTICLE I Defined Terms................................................................................... 1
Section 101. Definitions.......................................................................... 1
ARTICLE II Continuation Of The Trust...................................................................... 12
Section 201. Name................................................................................. 12
Section 202. Office of the Delaware Trustee; Principal Place of Business.......................... 12
Section 203. Initial Contribution of Trust Property; Organizational Expenses...................... 12
Section 204. Issuance of the Trust Preferred Securities........................................... 12
Section 205. Issuance of the Trust Common Securities; Subscription and Purchase of Junior
Subordinated Debentures.............................................................. 13
Section 206. Declaration of Trust................................................................. 14
Section 207. Authorization to Enter into Certain Transactions..................................... 14
Section 208. Assets of Trust...................................................................... 17
Section 209. Title to Trust Property.............................................................. 17
ARTICLE III Payment Account............................................................................... 18
Section 301. Payment Account...................................................................... 18
ARTICLE IV Distribution; Redemption....................................................................... 18
Section 401. Distributions........................................................................ 18
Section 402. Redemption........................................................................... 19
Section 403. Subordination of Trust Common Securities............................................. 22
Section 404. Payment Procedures................................................................... 23
Section 405. Tax Returns and Reports.............................................................. 23
Section 406. Payment of Taxes, Duties, Etc. of the Trust.......................................... 23
Section 407. Payments under Indenture or Pursuant to Direct Actions............................... 24
Section 408. Liability of the Holder of Trust Common Securities................................... 24
ARTICLE V Trust Securities Certificates................................................................... 24
Section 501. Initial Ownership.................................................................... 24
Section 502. The Trust Securities Certificates.................................................... 24
Section 503. Execution and Delivery of Trust Securities Certificates.............................. 25
Section 504. Global Trust Preferred Securities.................................................... 25
Section 505. Registration of Transfer and Exchange Generally; Certain Transfers and Exchanges;
Trust Preferred Securities Certificates.............................................. 27
Section 506. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates................... 29
Section 507. Persons Deemed Holders............................................................... 29
Section 508. Access to List of Holders' Names and Addresses....................................... 30
Section 509. Maintenance of Office or Agency...................................................... 30
Section 510. Appointment of Paying Agent.......................................................... 30
(i)
Section 511. Ownership of Trust Common Securities by Depositor.................................... 31
Section 512. Notices to Depositary................................................................ 32
Section 513. Rights of Holders.................................................................... 32
ARTICLE VI Acts Of Holders; Meetings; Voting.............................................................. 34
Section 601. Limitations on Holder's Voting Rights................................................ 34
Section 602. Notice of Meetings................................................................... 35
Section 603. Meetings of Holders.................................................................. 35
Section 604. Attendance at Meetings; Determination of Voting Rights; Conduct and Adjournment
of Meetings.......................................................................... 37
Section 605. Counting Votes and Recording Action of Meetings...................................... 38
Section 606. Holder Action by Written Consent..................................................... 39
Section 607. Record Date for Voting and Other Purposes............................................ 39
Section 608. Acts of Holders...................................................................... 39
Section 609. Inspection of Records................................................................ 41
ARTICLE VII Representations And Warranties................................................................ 41
Section 701. Representations and Warranties of the Property Trustee and the Delaware Trustee...... 41
Section 702. Representations and Warranties of Depositor.......................................... 42
ARTICLE VIII The Trustees; The Administrators............................................................. 43
Section 801. Certain Duties and Responsibilities.................................................. 43
Section 802. Events of Default; Waiver............................................................ 45
Section 803. Certain Notices...................................................................... 45
Section 804. Certain Rights of Property Trustee................................................... 45
Section 805. Not Responsible for Recitals or Issuance of Securities............................... 46
Section 806. May Hold Securities.................................................................. 47
Section 807. Compensation; Indemnity.............................................................. 47
Section 808. Trustees Required; Eligibility of Trustees and Administrators........................ 48
Section 809. Conflicting Interests................................................................ 49
Section 810. Co-Trustees and Separate Trustee..................................................... 49
Section 811. Resignation and Removal; Appointment of Successor.................................... 50
Section 812. Acceptance of Appointment by Successor............................................... 52
Section 813. Merger, Conversion, Consolidation or Succession to Business.......................... 52
Section 814. Preferential Collection of Claims Against Depositor or Trust......................... 53
Section 815. Trustee May File Proofs of Claim..................................................... 53
Section 816. Reports by Property Trustee.......................................................... 54
Section 817. Reports to the Property Trustee...................................................... 54
Section 818. Evidence of Compliance with Conditions Precedent..................................... 55
Section 819. Number of Trustees................................................................... 55
Section 820. Delegation of Power.................................................................. 55
Section 821. Appointment of Administrators........................................................ 55
Section 822. Delaware Trustee..................................................................... 56
(ii)
ARTICLE IX Dissolution, Liquidation And Merger............................................................ 57
Section 901. Dissolution Upon Expiration Date..................................................... 57
Section 902. Early Dissolution.................................................................... 57
Section 903. Termination.......................................................................... 57
Section 904. Liquidation.......................................................................... 58
Section 905. Mergers, Consolidations, Amalgamations or Replacements of the Trust.................. 59
ARTICLE X Miscellaneous Provisions........................................................................ 60
Section 1001. Limitations of Rights of Holders.................................................... 60
Section 1002. Amendment........................................................................... 60
Section 1003. Separability........................................................................ 62
Section 1004. Governing Law....................................................................... 62
Section 1005. Payments Due on Non-Business Day.................................................... 63
Section 1006. Successors.......................................................................... 63
Section 1007. Headings............................................................................ 63
Section 1008. Reports, Notices and Demands........................................................ 63
Section 1009. Agreement Not to Petition........................................................... 64
Section 1010. Trust Indenture Act; Conflict with Trust Indenture Act.............................. 64
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee and Indenture..................... 65
Exhibit A Certificate of Trust
Exhibit B Form of Trust Common Securities Certificate
Exhibit C Form of Trust Preferred Securities Certificate
(iii)
CP&L ENERGY CAPITAL TRUST __
Certain Sections of this Trust Agreement relating, to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act
Section Trust Agreement Section
------------------- -----------------------
Section 310 (a)(1).............................................. 808
(a)(2).............................................. 808
(a)(3).............................................. 810
(a)(4).............................................. 207(a)(ii)
(b)................................................. 809, 811
Section 311 (a)................................................. 814
(b)................................................. 814
Section 312 (a)................................................. 508
(b)................................................. 508
(c)................................................. 508
Section 313 (a)................................................. 816
(b)................................................. 816
(c)................................................. 816
(d)................................................. 816
Section 314 (a)................................................. 817
(a)(4).............................................. 818
(b)................................................. Not Applicable
(c)(1).............................................. 818
(c)(2).............................................. 818
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 818
Section 315 (a)................................................. 801, 804
(b)................................................. 803
(c)................................................. 801
(d)................................................. 801
(e)................................................. Not Applicable
Section 316 (a)................................................. 513
(a)(1)(A)........................................... 513
(a)(1)(B)........................................... 513
(a)(2).............................................. Not Applicable
(b)................................................. 513
(c)................................................. 607
Section 317 (a)(1).............................................. Not Applicable
(a)(2).............................................. 815
(b)................................................. 510
Section 318 (a)................................................. 1010(a)
---------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
(iv)
AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT (this "Trust Agreement"),
dated as of _____________________, 200_, by and among (i) CP&L Energy, Inc., a
North Carolina corporation (including any successors or assigns, the
"Depositor"), (ii) __________________________, a New York banking corporation,
as property trustee (in such capacity, the "Property Trustee" and, in its
separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) _________________________________, a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee") (the Property Trustee
and the Delaware Trustee are referred to collectively herein as the "Trustees"),
(iv)__________ and __________, each an individual, as administrators ("the
administrators"), and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, an individual, as
administrative trustee (the "Administrative Trustee"), and Bank One Delaware,
Inc, as Delaware Trustee ("Bank One Delaware") have heretofore duly declared and
established a business trust pursuant to the Delaware Business Trust Act by
entering into a certain Trust Agreement, dated as of November 6, 2000 (the
"Original Trust Agreement"), and by the execution and filing by Bank One
Delaware with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on November 8, 2000 (the "Certificate of Trust"), attached as
Exhibit A; and
WHEREAS, the Depositor, the Administrative Trustee and the Delaware
Trustee desire to amend and restate the Original Trust Agreement in its entirety
as set forth herein to provide for, among other things, (i) the issuance of the
Trust Common Securities by the Trust to the Depositor, (ii) the issuance and
sale of the Trust Preferred Securities by the Trust pursuant to the Underwriting
Agreement, (iii) the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Junior Subordinated Debentures, (iv) the
appointment of the Administrators and (v) the addition of the Property Trustee
as a party to this Trust Agreement;
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 are hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be legally
bound, as follows:
ARTICLE I
Defined Terms
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Section 101. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
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(b) 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;
(c) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles as in effect at the time of computation;
(e) 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;
(f) 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; and
(g) all references to the date the Trust Preferred Securities
were originally issued shall refer to the date the ______% Trust Preferred
Securities were originally issued.
"Act" has the meaning specified in Section 608.
"Additional Amounts" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Additional
Interest paid by the Depositor on a Like Amount of Junior Subordinated
Debentures for such period.
"Additional Interest" has the meaning specified in Section 101 of
the Indenture.
"Additional Sums" has the meaning specified in Section 608 of the
Indenture.
"Administrators" means each Person appointed in accordance with
Section 821 solely in such Person"s capacity as Administrator of the Trust
continued hereunder and not in such Person"s individual capacity, or any
successor Administrator appointed as herein provided; with the initial
Administrators being ___________________ and __________________________.
"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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Trust Preferred Security or beneficial interest
therein, the rules and
2
procedures of the Depositary for such Trust Preferred Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; (i)
judging such Person a bankrupt or insolvent; (ii) approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law; (iii)
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of its
property; (iv) ordering the winding-up or liquidation of its affairs; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent; (i) the consent by it to the
institution of bankruptcy or insolvency proceedings against it; (ii) the
filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law; (iii) the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or of
any substantial part of its property; (iv) 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 and its
willingness to be adjudicated a bankrupt; (v) the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 1009.
"Board of Directors" means either the board of directors of the
Depositor or any committee thereof duly authorized to act or any director or
directors and/or officer or officers of the Depositor to whom that board or
committee shall have duly delegated its authority in respect of matters relating
to this Trust Agreement.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustees.
"Business Day," when used with respect to any particular location
specified in the Trust Securities or this Trust Agreement, means any day, other
than a Saturday or Sunday, which is not a day on which banking institutions or
trust companies (including the Corporate Trust Office of the Property Trustee,
the Delaware Trustee or the Debenture Trustee) in such location are generally
authorized or required by law, regulation or executive order to remain closed,
except as may be otherwise specified in the Trust Securities.
"Cede" means Cede & Co.
"Certificate of Trust" has the meaning specified in the preamble to
this Trust Agreement.
"Closing Date" means the Closing Time, which date is also the date
of execution and delivery of this Trust Agreement.
"Closing Time" means the First Closing Date, as that term is used
throughout the Underwriting 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, as amended, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Corporate Trust Office" means the principal corporate trust office
of the Property Trustee located in the City of New York which at the time of the
execution of this Trust Agreement is located at
_______________________________________, New York, New York ____________.
"Debenture Event of Default" means an "Event of Default" as defined
in the Indenture.
"Debentures Purchase Agreement" means the Junior Subordinated
Deferrable Interest Debentures Purchase Agreement dated as of
________________________ between the Depositor and the Trust, as the same may be
amended from time to time.
"Debenture Redemption Date" means, with respect to any Junior
Subordinated Debentures to be redeemed under the Indenture, the date fixed for
redemption of such Debentures under the Indenture .
"Debenture Trustee" means ________________________________, a New
York banking corporation, as trustee under the Indenture, and any successor.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. " 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositary" shall mean, with respect to Global Trust Preferred
Securities, The Depository Trust Company, New York, New York, another clearing
agency, or any successor
4
registered as a clearing agency under the Exchange Act or other applicable
statute or regulation, which, in each case, shall be designated by the Depositor
pursuant to Section 504(b).
"Depositary Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 401(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 401.
"Early Termination Event" has the meaning specified in Section 902.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default;
(b) 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;
(c) default by the Trust in the payment of any Redemption Price
of any Trust Security when it becomes due and payable;
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Trustees in this Trust
Agreement (other than a covenant or warranty a default in the performance
of which or the breach of which is dealt with in clause (b) or (c) above)
and continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Trustees and
the Depositor by the Holders of at least 33% in aggregate Liquidation
Amount of the Outstanding Trust Preferred Securities, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(e) the occurrence of any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its property if a successor
Property Trustee has not been appointed within a period of 90 days
thereof; or
(f) the occurrence of any Bankruptcy Event with respect to the
Trust.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any successor statute thereto, as amended from time to time.
5
"Expiration Date" has the meaning specified in Section 901.
"Global Trust Preferred Securities Certificate" means a Trust
Preferred Securities Certificate evidencing ownership of Global Trust Preferred
Securities.
"Global Trust Preferred Security" means a Trust Preferred Security,
the ownership and transfers of which shall be made through book entries by the
Depositary as described in Section 504.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and __________________, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the Holders
of the Trust Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act .
"Indenture" means the Junior Subordinated Indenture, dated as of
_____________, between the Depositor and the Debenture Trustee (as amended or
supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of 1940,
as amended.
"Investment Company Event" means the receipt by the Trust of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the Trust is
or will be considered an "investment company" that is required to be registered
under the Investment Company Act, which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date of
the issuance of the Trust Preferred Securities.
"Junior Subordinated Debentures" means the aggregate principal
amount of the Depositor"s ___________% Junior Subordinated Deferrable Interest
Debentures, Series __ due ___________________, issued pursuant to the Indenture.
"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 (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Trust Common Securities and to the Trust Preferred Securities pro rata based
6
upon the relative Liquidation Amounts of such classes and (b) with respect to a
distribution of Junior Subordinated Debentures to Holders of Trust Securities in
connection with a dissolution or liquidation of the Trust, Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.
"Liquidation Amount" means the stated amount of $__________ per
Trust Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures are to be distributed to Holders of Trust Securities in connection
with a dissolution and liquidation of the Trust pursuant to Section 904.
"Liquidation Distribution" has the meaning specified in Section
904(d).
"Majority in Liquidation Amount of the Trust Preferred Securities"
or "Majority in Liquidation Amount of the Trust Common Securities" means, except
as provided by the Trust Indenture Act, Trust Preferred Securities or Trust
Common Securities, as the case may be, representing more than 50% of the
aggregate Liquidation Amount of all then Outstanding Trust Preferred Securities
or Trust Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, President, any Vice President, the Treasurer or any other duly
authorized officer of the Depositor, and delivered to the party provided herein.
Any Officers" Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement (other than pursuant to Section
817) shall include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to enable
such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Depositor or any Affiliate of the Depositor or
any Trustee.
7
"Original Trust Agreement" has the meaning specified in the preamble
to this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means, as
of the date of determination, all Trust Securities theretofore authenticated and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) 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 Trust Preferred
Securities, provided that if such Trust Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Trust
Agreement; and
(c) Trust Securities which have been paid, or in exchange for,
or in lieu of which, other Trust Securities have been executed and
delivered pursuant to Sections 504, 505 and 506, other than any such Trust
Securities in respect of which there shall have been presented to the
Property Trustee proof satisfactory to it and the Depositor that such Trust
Securities are held by a bona fide purchaser or purchasers in whose hands
such Trust Securities are valid obligations of the Depositor;
provided, however, that in determining whether or not the Holders of the
requisite Liquidation Amount of the Trust Preferred Securities Outstanding under
this Trust Agreement have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether or not a quorum is present at a
meeting of Holders of Trust Securities, Trust Securities owned by the Depositor,
any Trustee, and Administrator or any other obligor upon the Trust Securities or
any Affiliate of the Depositor or of such other obligor (unless the Depositor,
such Affiliate or such obligor owns all Trust Securities Outstanding under this
Trust Agreement determined without regard to this proviso) shall be disregarded
and deemed not to be Outstanding, except that (i) in determining whether any
Trustee or any Administrator shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver or upon any
such determination as to the presence of a quorum, only Trust Preferred
Securities that such Trustee or such Administrator, as the case may be, knows to
be so owned shall be so disregarded and (ii) the foregoing shall not apply at
any time when all of the Outstanding Trust Preferred Securities are owned by the
Depositor, one or more of the Trustees, one or more of the Administrators and/or
any such Affiliate; provided, however, that Trust Preferred Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrators the pledgee"s
right so to act with respect to such Trust Preferred Securities and that the
pledgee is not the Depositor or any other obligor upon the Trust Preferred
Securities or any Affiliate of the Depositor or of such other obligor.
"Owner" means each Person who is the beneficial owner of Global
Trust Preferred Securities as reflected in the records of the Depositary or, if
a Depositary Participant is
8
not the Owner, then as reflected in the records of a Person maintaining an
account with such Depositary (directly or indirectly), in accordance with the
rules of such Depositary.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 510 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained with the Property Trustee in its corporate trust
department for the benefit of the Holders in which all amounts paid in respect
of the Junior Subordinated Debentures will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in
accordance with Sections 401 and 402.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, company, limited liability company, trust, unincorporated organization
or government or any agency or political subdivision thereof, or any other
entity of whatever nature.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Property Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property 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 and the stated maturity
of the Junior Subordinated Debentures shall be a Redemption Date for a Like
Amount of Trust Securities, including but not limited to any date of redemption
pursuant to the occurrence of any Special Event.
"Redemption Price" means a price equal to 100% of the Liquidation
Amount of the Trust Security to be redeemed, together with accumulated
Distributions to but excluding the date fixed for redemption and the related
amount of the premium, if any, paid by the Depositor upon the concurrent
redemption of the Junior Subordinated Debentures.
"Relevant Trustee" has the meaning specified in Section 811.
"Responsible Officer" when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary, trust officer, senior trust officer or any other officer of
the Property Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of the Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer"s
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor statute thereto, in each case as amended from time to time.
9
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 505.
"Senior Indebtedness" has the meaning specified in the Indenture.
"Special Event" means any Tax Event or Investment Company Event.
"Successor Trust Preferred Securities Certificate" of any particular
Trust Preferred Securities Certificate means every Trust Preferred Securities
Certificate issued after, and evidencing all or a portion of the same beneficial
interest in the Trust as that evidenced by, such particular Trust Preferred
Securities Certificate; and, for the purposes of this definition, any Trust
Preferred Securities Certificate executed and delivered under Section 506 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Trust
Preferred Securities Certificate shall be deemed to evidence the same beneficial
interest in the Trust as the mutilated, destroyed, lost or stolen Trust
Preferred Securities Certificate.
"Successor Trust Preferred Security" has the meaning specified in
Section 905.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the date of
issuance of the Trust Preferred Securities (including, without limitation, any
of the foregoing arising with respect to, or resulting from, any proceeding or
other action commencing on or before such date), there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the
delivery of such Opinion of Counsel, subject to United States Federal income tax
with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest payable by the Depositor on the Junior Subordinated
Debentures is not, or within 90 days of the delivery of such Opinion of Counsel
will not be, deductible by the Depositor, in whole or in part, for United States
Federal income tax purposes, or (iii) the Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Trust" means CP&L Energy Capital Trust __.
"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, 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 modification, amendment or supplement, respectively.
10
"Trust Common Securities Certificate" means a certificate evidencing
ownership of Trust Common Securities, substantially in the form attached as
Exhibit B.
"Trust Common Securities Purchase Agreement" means the Trust Common
Securities Purchase Agreement dated as of __________________ between the Trust
and the Depositor, as the same may be amended from time to time.
"Trust Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount of $____________and having
the rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force and effect as of the date of execution of this Trust Agreement; provided,
however, that in the event the Trust Indenture Act of 1939 is succeeded by
another statute or is amended after such date, "Trust Indenture Act" shall mean
such successor statute or the Trust Indenture Act of 1939, as so amended, to the
extent such successor statute or amendment is applicable to this Trust Agreement
or to the actions of the Depositor or the Property Trustee under or pursuant to
this Trust Agreement.
"Trust Preferred Securities Certificate" means a certificate
evidencing ownership of Trust Preferred Securities, substantially in the form
attached as Exhibit C.
"Trust Preferred Security" means a preferred undivided beneficial
interest in the assets of the Trust, having a Liquidation Amount of
$___________and having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Trust Property" means (a) the Junior Subordinated Debentures, (b)
any cash on deposit in, or owing to, the Payment Account, (c) all proceeds and
rights in respect of the foregoing and (d) any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to the
trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Trust Common
Securities Certificates or the Trust Preferred Securities Certificates.
"Trust Security" means any one of the Trust Common Securities or the
Trust Preferred Securities.
"Trustees" means, collectively, the Property Trustee and the
Delaware Trustee.
"Underwriters" has the meaning specified in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated as
of _________, among the Trust, the Depositor and the Underwriters, as the same
may be amended from time to time.
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ARTICLE II
Continuation Of The Trust
-------------------------
Section 201. Name.
The Trust continued hereby shall be known as "CP&L Energy Capital
Trust __," as such name may be modified from time to time by the Administrators
following written notice to the Holders of Trust Securities and the Trustees, in
which name the Administrators and the Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments on behalf
of the Trust and ▇▇▇ and be sued.
Section 202. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is
______________________________________________ , _____________________________,
____________, ____________ , _____, Attention: Corporate Trustee Administration
Department, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders and the Depositor. The
principal executive office of the Trust is in care of ________________________
_______________________________________________________________________________.
Section 203. Initial Contribution of Trust Property; Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with this Trust Agreement of the sum of $_____________,
which constitutes the initial Trust Property. The Depositor shall pay all
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 204. Issuance of the Trust Preferred Securities.
The Depositor and the Trust executed and delivered the Underwriting
Agreement as of ________________________, pursuant to the Original Trust
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Trust, shall by manual or
facsimile signature execute in accordance with Section 503 and the Property
Trustee shall authenticate in accordance with Section 503 and deliver to the
Underwriters, Trust Preferred Securities Certificates, registered in the names
requested by the Underwriters, in an aggregate amount of ___________________
Trust Preferred Securities having an aggregate Liquidation Amount of
$__________________ against receipt of the aggregate purchase price of such
Trust Preferred Securities of $_______________, by the Property Trustee.
If the Underwriters exercise their option to purchase all or any
portion of an additional ____________ Trust Preferred Securities pursuant to the
terms of the Underwriting
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Agreement, then an Administrator, on behalf of the Trust, shall by manual or
facsimile signature execute in accordance with Section 503 and the Property
Trustee shall authenticate in accordance with Section 503 and deliver to the
Underwriters, additional Trust Preferred Securities Certificates, registered in
the names requested by the Underwriters, in an aggregate amount of up to
_______________ additional Trust Preferred Securities having an aggregate
Liquidation Amount of up to $_______________________, against receipt of the
aggregate purchase price of such additional Trust Preferred Securities of up to
$_________________ by the Property Trustee.
Section 205. Issuance of the Trust Common Securities; Subscription and
Purchase of Junior Subordinated Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Trust, shall by manual or
facsimile signature execute or cause to be executed in accordance with Section
503 and the Property Trustee shall authenticate in accordance with Section 503
and shall deliver to the Depositor Trust Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of ______ Trust
Common Securities having an aggregate Liquidation Amount of $___________ against
receipt of the aggregate purchase price of such Trust Common Securities of
$_________ by the Property Trustee. Contemporaneously therewith, an
Administrator, on behalf of the Trust, shall subscribe for and purchase from the
Depositor the Junior Subordinated Debentures, registered in the name of the
Property Trustee and having an aggregate principal amount equal to $_________,
and, in satisfaction of the purchase price for such Junior Subordinated
Debentures, the Property Trustee, on behalf of the Trust, shall deliver to the
Depositor the sum of $_________, (being the sum of the amounts delivered to the
Property Trustee pursuant to (i) the second sentence of Section 204, and (ii)
the first sentence of this Section 205) and receive on behalf of the Trust such
Junior Subordinated Debentures.
If the Underwriters exercise their option to purchase additional
Trust Preferred Securities pursuant to the terms of the Underwriting Agreement,
then an Administrator, on behalf of the Trust, shall by manual or facsimile
signature execute in accordance with Section 503 and the Property Trustee shall
authenticate and deliver to the Depositor additional Trust Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
up to ______ additional Trust Common Securities having an aggregate Liquidation
Amount of up to $_______ against receipt of the aggregate purchase price of such
additional Trust Common Securities of up to $________ by the Property Trustee.
Contemporaneously therewith, an Administrator, on behalf of the Trust, shall
subscribe for and purchase from the Depositor the Junior Subordinated
Debentures, registered in the name of the Property Trustee and having an
aggregate principal amount of up to $_______, and, in satisfaction of the
purchase price for such Junior Subordinated Debentures, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor an aggregate amount equal to
the sum of the amounts delivered to the Property Trustee pursuant to (i) the
third sentence of Section 204, and (ii) the third sentence of this Section 205.
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Section 206. Declaration of Trust.
The exclusive purposes and functions of the Trust are to (a) issue
and sell Trust Securities and use the proceeds from such sale to acquire the
Junior Subordinated Debentures, and (b) engage in only those other activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Trust and the Holders. The Depositor hereby appoints the Administrators, with
such Administrators having all rights, powers and duties set forth herein with
respect to accomplishing the purposes of the Trust, and the Administrators
hereby accept such appointment; provided, however, that it is the intent of the
parties hereto that such Administrators shall not be trustees or, to the fullest
extent permitted by law, fiduciaries with respect to the Trust and this Trust
Agreement shall be construed in a manner consistent with such intent. 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 Administrators set forth herein. The Delaware Trustee shall be
one of the trustees of the Trust for the sole and limited purpose of fulfilling
the requirements of Section 3807 of the Delaware Business Trust Act and for
taking such actions as are required to be taken by a Delaware trustee under the
Delaware Business Trust Act.
Section 207. Authorization to Enter into Certain Transactions.
(a) The Trustees and the Administrators 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
in accordance with the following provisions (i) and (ii), the Trustees and
the Administrators shall act as follows:
(i) Each Administrator, acting jointly or singly, shall:
(1) comply with the Underwriting Agreement regarding
the issuance and sale of the Trust Securities;
(2) assist in compliance with the Securities Act,
applicable State securities or blue sky laws, and the Trust
Indenture Act;
(3) assist in the listing of the Trust Preferred
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor, with the registration
of the Trust Preferred Securities under the Exchange Act, if
required, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(4) execute the Trust Securities on behalf of the
Trust in accordance with this Trust Agreement;
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(5) execute and deliver an application for a taxpayer
identification number for the Trust;
(6) assist in the filing with the Commission, at such
time as determined by the Depositor, any registration
statement under the Securities Act, including any amendments
thereto;
(7) unless otherwise required by the Trust Indenture
Act, execute on behalf of the Trust any documents that the
Administrators have the power to execute pursuant to this
Trust Agreement, including without limitation, the
Debentures Purchase Agreement and the Trust Common
Securities Purchase Agreement and send notices (other than
notices of default) and other information regarding the
Trust Securities and the Junior Subordinated Debentures to
the Holders in accordance with this Trust Agreement; and
(8) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of this
Trust Agreement.
(ii) The Property Trustee shall have the power and
authority to act on behalf of the Trust with respect to the
following matters:
(1) the establishment of the Payment Account;
(2) the receipt of the Junior Subordinated
Debentures;
(3) the receipt and collection of interest, principal
and any other payments made in respect of the Junior
Subordinated Debentures in the Payment Account;
(4) the distribution, through the Paying Agent, of
amounts owed to the Holders in respect of the Trust
Securities;
(5) the exercise of all of the rights, powers and
privileges of a holder of the Junior Subordinated Debentures
(subject to the terms of this Trust Agreement);
(6) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in accordance with
this Trust Agreement;
(7) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(8) to the extent provided in this Trust Agreement,
the winding-up of the affairs of and liquidation of the
Trust and the
15
preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of
Delaware; and
(9) after an Event of Default (other than under
paragraph (b), (c), (d), or (e) of the definition of such
term if such Event of Default is by or with respect to the
Property Trustee), comply with the provisions of this Trust
Agreement and take any action to give effect to the terms of
this Trust Agreement and protect and conserve the Trust
Property for the benefit of the Holders (without
consideration of the effect of any such action on any
particular Holder);
provided, however, that nothing in this Section 207(a)(ii)
shall require the Property Trustee to take any action that
is not otherwise required in this Trust Agreement.
(iii) the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrators as set
forth in Section 207(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees or Administrators acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as expressly
provided herein or contemplated hereby. In particular, neither the Trustees
nor the Administrators shall (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any
of the Trust Property or interests therein, including to Holders, except as
expressly provided herein, (iii) take any action that would cause the Trust
to become taxable other than as a grantor trust for United States Federal
income tax purposes, (iv) incur any indebtedness for borrowed money or
issue any other debt, or (v) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property. The
Property Trustee shall defend all claims and demands of all Persons at any
time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Trust Preferred
Securities, the Depositor shall have the right and responsibility to assist
the Trust with respect to, or effect on behalf of the Trust, the following
(and any actions taken by the Depositor in furtherance of the following
prior to the date of this Trust Agreement are hereby ratified and confirmed
in all respects):
(i) the preparation, execution and filing with the
Commission of a registration statement on the appropriate form under
the Securities Act with respect to the Trust Preferred Securities;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of
the Trust Preferred Securities and the determination of any and all
such acts, other than actions that must be taken by or
16
on behalf of the Trust, and the advice to the Administrators of
actions they must take on behalf of the Trust, and the preparation
for execution and filing of 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 the Trust
Preferred Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of
the Trust Preferred Securities; and
(iv) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Property Trustee are authorized and directed to
conduct the affairs of the Trust and to operate the Trust so that the Trust
will not be deemed to be an "investment company" required to be registered
under the Investment Company Act, and will not be taxable other than as a
grantor trust for the United States Federal income tax purposes and so that
the Junior Subordinated Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In this
connection, the Administrators, the Property Trustee and the Holders of
Trust Common Securities are authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or this Trust Agreement, that
the Administrators, Property Trustee and Holders of Trust Common Securities
determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the holders of the Outstanding Trust Preferred
Securities. In no event shall the Administrators or the Trustees be liable
to the Trust or the Holders for any failure to comply with this Section
that results from a change in law or regulations or in the interpretation
thereof. It is understood that (i) by performing its duties and obligations
as are specifically set forth in this Trust Agreement, the Property Trustee
shall be deemed to have complied with the provisions of the first sentence
of this Section 207(d) and (ii) nothing in this Section 207(d) shall
require the Property Trustee to take any actions other that those
specifically required by this Trust Agreement to be taken by it.
Section 208. Assets of Trust.
The assets of the Trust shall consist solely of the Trust Property.
Section 209. 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 Trust and the
Holders in accordance with this Trust Agreement.
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ARTICLE III
Payment Account
---------------
Section 301. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents 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 and for distribution as herein provided,
including (and subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Junior Subordinated
Debentures. Amounts held in the Payment Account shall not be invested by
the Property Trustee pending distribution thereof.
ARTICLE IV
Distribution; Redemption
------------------------
Section 401. Distributions.
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including of Additional
Amounts) will be made on the Trust Securities at the rate and on the dates
that payments of interest (including of Additional Interest) are made on
the Junior Subordinated Debentures. Accordingly:
(i) 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 accumulate from __________, 20__, and, except in the event
(and to the extent) that the Depositor exercises its right to defer
the payment of interest on the Junior Subordinated Debentures
pursuant to the Indenture, shall be payable quarterly in arrears on
__________, ________, _________, and ________ of each year,
commencing on _________, 20__. If any date on which a Distribution
is 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 that is a Business Day (without any additional
Distributions or other payment in respect of any such delay), with
the same force and effect as if made on the date on which such
payment was originally payable (each date on which distributions are
payable in accordance with this Section 401(a), a "Distribution
Date").
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(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of ____% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full Distribution
period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in a partial
month in a period. Distributions payable for each full Distribution
period will be computed by dividing the rate per annum by four. The
amount of Distributions payable for any period shall include any
Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred
and is continuing, the Depositor has the right under the Indenture
to defer the payment of interest on the Junior Subordinated
Debentures at any time and from time to time for a period not
exceeding 20 consecutive quarterly periods (an "Extension Period"),
during which Extension Periods the Depositor shall have the right to
make partial payments of interest on any Interest Payment Date (as
defined in the Indenture) and at the end of which the Depositor
shall pay all interest then accrued and unpaid, provided that no
Extension Period may extend beyond ____________________or end on a
day other than an Interest Payment Date. As a consequence of any
such deferral, quarterly Distributions on the Trust Securities by
the Trust will also be deferred (and the amount of Distributions to
which Holders of the Trust Securities are entitled will accumulate
additional Distributions thereon at a rate of _______% per annum,
compounded quarterly from the relevant payment date for such
Distributions, computed on the basis of a 360-day year of twelve 30-
day months and the actual days elapsed in a partial month in such
period). Additional Distributions payable for each full Distribution
period will be computed by dividing the rate per annum by four. The
term "Distributions" as used in Section 401 shall include any such
additional Distributions provided pursuant to this Section
401(a)(iii).
(iv) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable
on each Distribution Date only to the extent that the Trust has
funds then on hand and available in the Payment Account for the
payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities at the close of business
on the relevant record date, which shall be at the close of business on the
fifteenth day (whether or not a Business Day) next preceding the relevant
Distribution Date.
Section 402. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity
of the Junior Subordinated Debentures, the Trust will be required to redeem
a Like Amount of Trust Securities at the Redemption Price.
19
(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 shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number or CUSIP numbers of the Trust
Preferred Securities affected;
(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 will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accumulate on and after
said date, except as provided in Section 402(e) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust in issuing the Trust Securities may use "CUSIP" or
"private placement" numbers (if then generally in use), and, if so, the
Property Trustee shall indicate the "CUSIP" or "private placement" numbers
of the Trust Securities in notices of redemption and related materials as a
convenience to Holders; provided, that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption
and related material.
(d) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the applicable proceeds from the
contemporaneous redemption of Junior Subordinated Debentures. Redemptions
of the Trust Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price.
(e) If the Trust gives a notice of redemption in respect of any
Trust Preferred Securities, then, by 10:00 a.m., New York City time, on the
Redemption Date, the Depositor shall deposit sufficient funds with the
Property Trustee to pay the Redemption Price. If such deposit has been
made, then by 12:00 noon, New York City time, on the Redemption Date,
subject to Section 402(c), the Property Trustee will, with respect to Trust
Preferred Securities held in global form, irrevocably deposit with the
Depositary for such Trust Preferred Securities, to the extent available
therefor, funds sufficient to pay the
20
applicable Redemption Price and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price to the Holders of
the Trust Preferred Securities. With respect to Trust Preferred Securities
that are not held in global form, the Property Trustee, subject to Section
402(c), will irrevocably deposit with the Paying Agent, to the extent
available therefor, funds sufficient to pay the applicable Redemption Price
and will give the Paying Agent irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Trust Preferred Securities
upon surrender of their Trust Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the
Securities Register for the Trust Securities on the relevant record dates
for the related Distribution Dates. If notice of redemption shall have been
given and funds deposited as required, then, upon the date of such deposit,
all rights of Holders holding Trust Securities so called for redemption
will cease, except the right of such Holders to receive the Redemption
Price and any Distribution payable in respect of the Trust Securities on or
prior to the Redemption Date, but without interest, and such Trust
Securities will cease to be Outstanding. In the event that any date on
which any applicable Redemption Price is payable is not a Business Day,
then payment of the applicable Redemption Price payable on such date will
be made on the next succeeding day that 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 in respect of any Trust Securities called for redemption
is improperly withheld or refused and not paid either by the Trust or by
the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accumulate, as set forth in Section 401 and in
accordance with the continued accrual of interest on the Junior
Subordinated Debentures, from the Redemption Date originally established by
the Trust for such Trust Securities to the date such applicable Redemption
Price is actually paid, in which case the actual payment date will be the
date fixed for redemption for purposes of calculating the applicable
Redemption Price.
(f) Subject to Section 403(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of such Trust Securities to be redeemed shall
be allocated pro rata to the Trust Common Securities and the Trust
Preferred Securities based on the relative Liquidation Amounts of such
classes. The amount of premium, if any, paid by the Depositor upon the
redemption of all or any part of the Junior Subordinated Debentures to be
repaid or redeemed on a Redemption Date shall be allocated to the
redemption pro rata of the Trust Preferred Securities and the Trust Common
Securities. The particular Trust Preferred Securities to be redeemed shall
be selected by the Property Trustee by such method (including, without
limitation, on a pro rata basis based on their respective Liquidation
Amounts or by lot) as the Property Trustee shall deem fair and appropriate,
which may provide for the selection for redemption of portions (equal to
$_____ or integral multiples thereof) of the Liquidation Amount of Trust
Preferred Securities of a denomination larger than $______, not more than
60 days prior to the Redemption Date from the Outstanding Trust Preferred
21
Securities not previously called for redemption, or if the Trust Preferred
Securities are then held in the form of a Global Trust Preferred Security,
by the Depositary in accordance with the customary procedures for the
Depositary. In any such proration, the Property Trustee shall make such
adjustments so that any Trust Preferred Security to be redeemed shall,
after such redemption, be in an authorized denomination. The Property
Trustee shall promptly notify the Securities Registrar in writing of the
Trust Preferred Securities selected for redemption and, in the case of any
Trust Preferred Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to the
redemption of Trust Preferred Securities shall relate, in the case of any
Trust Preferred Securities redeemed or to be redeemed only in part, to the
portion of the aggregate Liquidation Amount of Trust Preferred Securities
that has been or is to be redeemed.
Section 403. Subordination of Trust Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation Distribution
in respect of, the Trust Securities, as applicable, shall be made, subject
to Section 402(e), pro rata among the Trust Common Securities and the Trust
Preferred Securities based on the Liquidation Amount of such Trust
Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture Event of
Default in Section 801(a) or 801(b) of the Indenture shall have occurred
and be continuing, no payment of any Distribution (including any Additional
Amounts) on, Redemption Price of, or Liquidation Distribution in respect
of, any Trust Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Trust Common Securities,
shall be made unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all Outstanding Trust
Preferred Securities for all Distribution periods terminating on or prior
thereto, or, in the case of payment of the Redemption Price, the full
amount of such Redemption Price on all Outstanding Trust Preferred
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution, the full amount of such Liquidation Distribution
on all Outstanding Trust Preferred Securities, shall have been made or
provided for, and all funds immediately available to the Property Trustee
shall first be applied to the payment in full in cash of all Distributions
(including any Additional Amounts) on, or the Redemption Price of, or
Liquidation Distribution in respect of, Trust Preferred Securities then due
and payable. The existence of an Event of Default does not entitle the
Holders of Trust Preferred Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of the Trust
Common Securities shall be deemed to have waived any right to act with
respect to any such Event of Default under this Trust Agreement until the
effects of all such Events of Default with respect to the Trust Preferred
Securities have been cured, waived or otherwise eliminated. Until all such
Events of Default under this Trust Agreement with respect to the Trust
Preferred
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Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Trust Preferred
Securities and not on behalf of the Holder of the Trust Common Securities,
and only the Holders of the Trust Preferred Securities will have the right
to direct the Property Trustee to act on their behalf.
Section 404. Payment Procedures.
Payments of Distributions (including any Additional Amounts) in
respect of the Trust Preferred Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Trust Preferred Securities are held by the
Depositary, such Distributions shall be made to the Depositary in immediately
available funds, which will credit the relevant accounts on the applicable
Distribution Dates. Payments in respect of the Trust Common Securities shall be
made in such manner as shall be mutually agreed between the Property Trustee and
the Holder of the Trust Common Securities.
Section 405. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at the
Depositor's expense, 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 Administrators shall (a) prepare and file (or cause
to be prepared and filed) all Internal Revenue Service forms required to be
filed in respect of the Trust in each taxable year of the Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each Holder all Internal
Revenue Service forms required to be provided by the Trust. The Administrators
shall provide the Depositor and the Property Trustee with a copy of all such
returns and reports promptly after such filing or furnishing. The Property
Trustee shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Holders under the Trust Securities.
On or before December 15 of each year during which any Trust
Preferred Securities are outstanding, the Administrators shall furnish to the
Paying Agent such information as may be reasonably requested by the Property
Trustee in order that the Property Trustee may prepare the information which it
is required to report for such year on Internal Revenue Service Forms 1096 and
1099 pursuant to Section 6049 of the Code. Such information shall include the
amount of original issue discount includable in income for each outstanding
Trust Preferred Security during such year, if any.
Section 406. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Junior Subordinated Debentures of Additional
Sums and the written direction of any of the Administrators, the Property
Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
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Section 407. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Trust Preferred
Securities shall be reduced by the amount of any corresponding payment such
Holder has directly received pursuant to Section 808 of the Indenture or Section
513 of this Trust Agreement.
Section 408. Liability of the Holder of Trust Common Securities.
The Holder of Trust Common Securities shall be liable for the debts
and obligations of the Trust as set forth in Section 907 of the Indenture
regarding allocation of expenses.
ARTICLE V
Trust Securities Certificates
-----------------------------
Section 501. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 203 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 502. The Trust Securities Certificates.
(a) The Trust Preferred Securities Certificates shall be issued
in fully registered form in denominations of $_____ Liquidation Amount or
integral multiples thereof. The Trust Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of at
least one Administrator. 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, 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 Holder, and shall be entitled to the rights and
subject to the obligations of a Holder hereunder, upon due registration of
such Trust Securities Certificate in such transferee's name pursuant to
Section 505.
(b) Upon their original issuance, Trust Preferred Securities
Certificates representing Global Trust Preferred Securities shall be issued
in the form of one or more Global Trust Preferred Securities Certificates
registered in the name of Cede as the Depositary's nominee and deposited
with or on behalf of the Depositary for credit by the Depositary to the
respective accounts of the Owners thereof (or such other accounts as they
may direct). Except as set forth herein, record ownership of the Global
Trust Preferred Securities may be transferred, in whole or in part, only to
the Depositary, another nominee of Depositary or to a successor of the
Depositary or its nominee.
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(c) A single Trust Common Securities Certificate representing
the Trust Common Securities shall be issued to the Depositor in the form of
a definitive Trust Common Securities Certificate.
Section 503. Execution and Delivery of Trust Securities Certificates.
At the Closing Time, and on the date, if any, on which the
Underwriters exercise their option to purchase additional Trust Preferred
Securities pursuant to the terms of the Underwriting Agreement, as applicable,
an Administrator shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 204 and 205, to be executed on behalf
of the Trust and delivered to the Property Trustee and upon such delivery the
Property Trustee shall authenticate such Trust Securities Certificates and
deliver such Trust Securities Certificates upon the written order of the Trust,
executed by an Administrator thereof, without further corporate action by the
Depositor, in authorized denominations. Only such Trust Securities Certificates
as shall bear thereon a certificate of authentication substantially in the form
provided for herein executed by the Property Trustee by manual signature of an
authorized officer thereof shall be entitled to the benefits of this Trust
Agreement or be valid or obligatory for any purpose.
Section 504. Global Trust Preferred Securities.
(a) The Global Trust Preferred Securities issued under this
Trust Agreement shall be registered in the name of the nominee of the
Depositary and delivered to the Property Trustee as custodian therefor, and
such Global Trust Preferred Security shall constitute a single Trust
Preferred Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision of this Trust Agreement,
except as contemplated by the provisions of paragraph (c) below, unless the
terms of a Global Trust Preferred Security expressly permit such Global
Trust Preferred Security to be exchanged in whole or in part for individual
Trust Preferred Securities, a Global Trust Preferred Security may be
transferred, in whole but not in part and in the manner provided in Section
505, only to a nominee of the Depositary for such Global Trust Preferred
Security, or to the Depositary, or to a successor Depositary for such
Global Trust Preferred Security selected or approved by the Depositor, or
to a nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global Trust
Preferred Security notifies the Depositor that it is unwilling or
unable to continue as the Depositary for such Global Trust Preferred
Security or if at any time the Depositary for the Trust Preferred
Securities shall no longer be eligible or in good standing under the
Exchange Act, or other applicable statute or regulation, the
Depositor shall appoint a successor Depositary with respect to such
Global Trust Preferred Security. If a successor Depositary for such
Global Trust Preferred Security is not appointed by the Depositor
within 90 days after the Depositor receives such notice or becomes
aware of such ineligibility, an Administrator will execute, and the
Property Trustee will authenticate and deliver, Trust Preferred
Securities in the
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form of definitive certificates of like tenor and terms ("Definitive
Trust Preferred Securities") in a Liquidation Amount equal to the
Liquidation Amount of the Global Trust Preferred Security in
exchange for such Global Trust Preferred Security. Such Definitive
Trust Preferred Securities will be issued in the form of a Trust
Preferred Securities Certificate or Certificates to and registered
in the name of such Person or Persons as are specified by the
Depositary.
(2) The Trust may at any time and in its sole discretion
determine that the Trust Preferred Securities issued or issuable in
the form of one or more Global Trust Preferred Securities shall no
longer be represented by such Global Trust Preferred Security or
Securities. In any such event an Administrator will execute, and the
Property Trustee will authenticate and deliver without service
charge to each Person specified by the Depositary a Trust Preferred
Securities Certificate of like tenor in a Liquidation Amount equal
to the Liquidation Amount of such Global Trust Preferred Security,
or the aggregate Liquidation Amount of such Global Trust Preferred
Securities, in exchange for such Global Trust Preferred Security or
Securities.
(3) If specified by the Trust with respect to a Global
Trust Preferred Security, the Depositary for such Global Trust
Preferred Security may surrender such Global Trust Preferred
Security in exchange in whole or in part for Definitive Trust
Preferred Securities on such terms as are acceptable to the Trust
and such Depositary. Thereupon an Administrator shall execute, and
the Property Trustee shall authenticate and deliver, without service
charge, (A) to each Person specified by such Depositary a Trust
Preferred Securities Certificate of like tenor and of any authorized
denomination as requested by such Person in aggregate Liquidation
Amount equal to and in exchange for the Liquidation Amount of such
Person's Global Trust Preferred Security; and (B) to such Depositary
a new Global Trust Preferred Security in an authorized denomination
equal to the difference, if any, between the Liquidation Amount of
the surrendered Global Trust Preferred Security and the aggregate
Liquidation Amount of Trust Preferred Securities delivered to
Holders thereof.
(4) In any exchange provided for in any of the preceding
three subparagraphs, an Administrator shall execute and the Property
Trustee shall authenticate and deliver Trust Preferred Securities
Certificates in authorized denominations. Upon the exchange of the
entire Liquidation Amount of a Global Trust Preferred Security for
Definitive Trust Preferred Securities, such Global Trust Preferred
Security shall be canceled by the Property Trustee. Except as
provided in the immediately preceding subparagraph, Definitive Trust
Preferred Securities issued in exchange for a Global Trust Preferred
Security pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depositary for such
Global Trust Preferred Security, acting pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Property Trustee. Provided that the Depositor and the
Property
26
Trustee have so agreed, the Property Trustee shall deliver a Trust
Preferred Securities Certificate to the Persons in whose names the
Trust Preferred Securities are so to be registered.
(5) Any endorsement of a Global Trust Preferred Security to
reflect the Liquidation Amount thereof, or any increase or decrease
in such Liquidation Amount, or changes in the rights of Holders of
Outstanding Trust Preferred Securities represented thereby shall be
made in such manner and by such Person or Persons as shall be
specified in or pursuant to any applicable letter of representations
or other arrangement entered into with, or procedures of, the
Depositary with respect to such Global Trust Preferred Security.
Subject to the provisions of Section 503, the Property Trustee shall
deliver and redeliver any such Global Trust Preferred Security in
the manner and upon instructions given by the Person or Persons
specified in or pursuant to any applicable letter of representations
or other arrangement entered into with, or procedures of, the
Depositary with respect to such Global Trust Preferred Security.
(6) The Depositary or, if there be one, its nominee, shall
be the Holder of a Global Trust Preferred Security for all purposes
under this Trust Agreement; and beneficial owners with respect to
such Global Trust Preferred Security shall hold their interests
pursuant to applicable procedures of such Depositary. The Depositor,
the Property Trustee and the Trust Preferred Security Registrar
shall be entitled to deal with such Depositary for all purposes of
this Trust Agreement relating to such Global Trust Preferred
Security (including the payment of any Distributions and the giving
of instructions or directions by or to the beneficial owners of such
Global Trust Preferred Security as the sole Holder of such Global
Trust Preferred Security and shall have no obligations to the
beneficial owners thereof (including any direct or indirect
participants in such Depositary). None of the Depositor, the
Property Trustee, any Paying Agent or the Securities Registrar shall
have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests of a Global Trust Preferred Security in or pursuant to any
applicable letter of representations or other arrangement entered
into with, or procedures of, the Depositary with respect to such
Global Trust Preferred Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
Section 505. Registration of Transfer and Exchange Generally; Certain
Transfers and Exchanges; Trust Preferred Securities Certificates.
The Property Trustee shall keep or cause to be kept at its Corporate
Trust Office a register or registers for the purpose of registering Trust
Preferred Securities Certificates and transfers and exchanges of Trust Preferred
Securities Certificates in which the registrar and transfer agent with respect
to the Trust Preferred Securities (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Trust Preferred Securities Certificates and Trust Common Securities
Certificates (subject to
27
Section 511 in the case of Trust Common Securities Certificates) and
registration of transfers and exchanges of Trust Preferred Securities
Certificates as herein provided. Such register is herein sometimes referred to
as the "Securities Register." The Property Trustee is hereby appointed
Securities Registrar for the purpose of registering Trust Preferred Securities
and transfers of Trust Preferred Securities as herein provided.
Upon surrender for registration of transfer of any Trust Preferred
Security Certificate at the offices or agencies of the Property Trustee
designated for that purpose an Administrator shall execute, and the Property
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Trust Preferred Securities Certificates of any
authorized denominations of like tenor and aggregate Liquidation Amount and
bearing such restrictive legends as may be required by this Trust Agreement.
At the option of the Holder, Trust Preferred Securities Certificates
may be exchanged for other Trust Preferred Securities Certificates of any
authorized denominations, of like tenor and aggregate Liquidation Amount and
bearing such restrictive legends as may be required by this Trust Agreement,
upon surrender of the Trust Preferred Securities to be exchanged at such office
or agency. Whenever any Trust Preferred Securities are so surrendered for
exchange, an Administrator shall execute and the Property Trustee shall
authenticate and deliver the Trust Preferred Securities that the Holder making
the exchange is entitled to receive.
All Trust Preferred Securities Certificates issued upon any transfer
or exchange of Trust Preferred Securities shall be the valid obligations of the
Trust, evidencing the same debt, and entitled to the same benefits under this
Trust Agreement, as the Trust Preferred Securities Certificates surrendered upon
such transfer or exchange.
Every Trust Preferred Securities Certificate presented or
surrendered for transfer or exchange shall (if so required by the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Property Trustee and the Securities Registrar, duly
executed by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any transfer or
exchange of Trust Preferred Securities, but the Property Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Trust Preferred
Securities.
Neither the Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (x) to issue, register the transfer
of or exchange any Trust Preferred Security during a period beginning at the
opening of business 15 days before the day of selection for redemption of Trust
Preferred Securities pursuant to Article IV and ending at the close of business
on the day of mailing of the notice of redemption, or (y) to register the
transfer of or exchange any Trust Preferred Security so selected for redemption
in whole or in part, except, in the case of any such Trust Preferred Security to
be redeemed in part, any portion thereof not to be redeemed.
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None of the Trust, the Property Trustee, the Delaware Trustee, any
Paying Agent or the Securities Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Trust Preferred Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 506. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities 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 Securities
Registrar and the Administrators such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrators, or any one of them, on behalf of the Trust shall execute and
make available for delivery, and the Property Trustee shall authenticate, 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.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Trust Securities Certificate has become or is about to
become due and payable, the Trust, in its discretion (by an Administrator) may,
instead of issuing a new Trust Securities Certificate, pay such Trust Securities
Certificate.
In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrators or the Securities 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 assets of the Trust corresponding to that evidenced by the lost, stolen
or destroyed Trust Securities Certificate, 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 506 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 507. Persons Deemed Holders.
Prior to due presentment of a Trust Preferred Securities Certificate
for registration of transfer, the Trustees, the Administrators or the Securities
Registrar shall treat the Person in whose name any Trust Securities are issued
as the owner of such Trust Securities for the purpose of receiving Distributions
and for all other purposes whatsoever (subject to the record date
29
provisions hereof), and none of the Trustees, the Administrators nor the
Securities Registrar shall be bound by any notice to the contrary.
Section 508. Access to List of Holders' Names and Addresses.
Semiannually, not later than _______________ and _______________ in
each year, commencing with the year 200_, and at such other times as the
Property Trustee may request in writing, the Depositor shall furnish or cause to
be furnished to the Property Trustee information as to the names and addresses
of the Holders, 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,
however, that no such list need be furnished so long as the Property Trustee
shall be the Securities Registrar. Every holder of Trust Securities by receiving
and holding the same, agrees with the Depositor and the Property Trustee that
neither the Depositor nor the Property Trustee nor any agent of either of them
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Trust Securities in accordance with
Section 312 of the Trust Indenture Act, or any successor section of such Act,
regardless of the source from which such information was derived, and that the
Property Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trustee Indenture Act, or
any successor section of such Act.
Section 509. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an office or
offices or agency or agencies where Trust Preferred Securities Certificates may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Property Trustee initially designates ______________________
as its corporate trust office for such purposes. The Property Trustee shall give
prompt written notice to the Depositor, the Administrators and to the Holders of
any change in the location of the Securities Register or any such office or
agency.
Section 510. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrators. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Property Trustee may
revoke such power and remove any Paying Agent in its sole discretion. The Paying
Agent shall initially be the Property Trustee. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrators, and the Property Trustee. In the event that the Property Trustee
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Property Trustee shall appoint a successor
(which shall be a bank or trust company) that is reasonably
30
acceptable to the Administrators to act as Paying Agent. Such successor Paying
Agent or any additional Paying Agent appointed by the Property Trustee shall
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 Holders in trust for the benefit of
the Holders entitled thereto until such sums shall be paid to such Holders. The
Paying Agent shall return all unclaimed funds to the Property Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections 801, 803 and 806
herein shall apply to the Bank also in its role as Paying Agent, for so long as
the Bank shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent chosen by the Property Trustee
unless the context requires otherwise.
Section 511. Ownership of Trust Common Securities by Depositor.
At each Closing Time, the Depositor shall acquire and retain
beneficial and record ownership of the Trust Common Securities. Neither the
Depositor nor any successor Holder of the Trust Common Securities may transfer
less than all the Trust Common Securities, and the Depositor or any such
successor Holder may transfer the Trust Common Securities only (i) in connection
with a consolidation or merger of the Depositor into another entity or any
conveyance, transfer or lease by the Depositor of its properties and assets
substantially as an entirety to any Person, pursuant to Section 1101 of the
Indenture, or (ii) to an Affiliate of the Depositor in compliance with
applicable law (including the Securities Act and applicable State securities and
blue sky laws); provided that any such transfer shall be subject to the
condition that the transferor shall have obtained (A) either a ruling from the
Internal Revenue Service or an unqualified written opinion addressed to the
Trust and delivered to the Trustees of nationally recognized independent tax
counsel experienced in such matters to the effect that such transfer will not
(1) cause the Trust to be treated as issuing a class of interests in the Trust
differing from the class of interests represented by the Trust Common Securities
originally issued to the Depositor, (2) result in the Trust acquiring or
disposing of, or being deemed to have acquired or disposed of, an asset, or (3)
result in or cause the Trust to be treated as anything other than a grantor
trust for United States Federal income tax purposes and (B) an unqualified
written opinion addressed to the Trust and delivered to the Trustees of a
nationally recognized independent counsel experienced in such matters that such
transfer will not cause the Trust to be an "investment company" or controlled by
an "investment company" that is required to be registered under the Investment
Company Act. To the fullest extent permitted by law, any attempted transfer of
the Trust Common Securities, other than as set forth in the immediately
preceding sentence, shall be void. The Administrators shall cause each Trust
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN
AFFILIATE OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 511 OF
THE TRUST AGREEMENT."
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Section 512. Notices to Depositary.
To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, with respect to Trust Preferred Securities
represented by Global Trust Preferred Securities Certificates, the
Administrators and the Trustees shall give all such notices and communications
specified herein to be given to the Depositary, and shall have no obligations to
the Owners.
Section 513. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively
in the Property Trustee (in its capacity as such) in accordance with
Section 209, and the Holders shall not have any right or title therein
other than the 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 Trust Securities shall have no preemptive or similar
rights and when issued and delivered to Holders against payment of the
purchase price therefor, as provided herein, will be fully paid and
nonassessable by the Trust. Except as otherwise provided in Section 408,
the Holders of the Trust Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
(b) For so long as any Trust Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee
fails or the holders of not less than 33% in principal amount of the
outstanding Junior Subordinated Debentures fail to declare the principal of
all of the Junior Subordinated Debentures to be immediately due and
payable, the Holders of at least 33% in Liquidation Amount of the Trust
Preferred Securities then Outstanding shall have such right to make such
declaration by a notice in writing to the Property Trustee, the Depositor
and the Debenture Trustee.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated Debentures has been made and before a judgment or
decree for payment of the money due has been obtained by the Debenture
Trustee as provided in the Indenture, the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities, by written notice to
the Property Trustee, the Depositor and the Debenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
(1) all overdue installments of interest on all of
the Junior Subordinated Debentures,
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(2) any accrued Additional Interest on all of the
Junior Subordinated Debentures,
(3) the principal of any Junior Subordinated
Debentures which have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Junior
Subordinated Debentures, and
(4) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture
Trustee and the Property Trustee, their agents and counsel;
and
(ii) all Debenture Events of Default, other than the non-
payment of the principal of the Junior Subordinated Debentures which
has become due solely by such acceleration, have been cured or
waived as provided in Section 813 of the Indenture.
The Holders of at least a Majority in Liquidation Amount of the
Trust Preferred Securities may, on behalf of the Holders of all the Trust
Preferred Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such default has
been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with
the Debenture Trustee) or a default in respect of a covenant or provision
which under the Indenture cannot be modified or amended without the consent
of the holder of each outstanding Junior Subordinated Debentures. No such
rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of
the Trust Preferred Securities all or part of which is represented by
Global Trust Preferred Securities, a record date shall be established for
determining Holders of Outstanding Trust Preferred Securities entitled to
join in such notice, which record date shall be at the close of business on
the day the Property Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such notice, whether or not such Holders remain
Holders after such record date; provided, that, unless such declaration of
acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in
such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the
case may be, shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of
such 90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to
a written notice which has been canceled pursuant to the proviso to the
preceding sentence,
33
in which event a new record date shall be established pursuant to the
provisions of this Section 513(b).
(c) For so long as any Trust Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the
terms of this Trust Agreement and the Indenture, upon a Debenture Event of
Default specified in Section 801(a) or 801(b) of the Indenture, any Holder
of Trust Preferred Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section 808 of the
Indenture, for enforcement of payment to such Holder of the principal
amount of or interest on Junior Subordinated Debentures having an aggregate
principal amount equal to the aggregate Liquidation Amount of the Trust
Preferred Securities of such Holder (a "Direct Action"). Except as set
forth in Sections 513(b) and 513(c), the Holders of Trust Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Junior Subordinated
Debentures.
The holders of a Majority in Liquidation Amount of the Trust
Preferred Securities at the time Outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred on the Property Trustee with respect to the Trust Preferred
Securities; provided, however, that, 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 determine that the
proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of Holders of Trust
Preferred Securities not parties 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 by such Holders.
ARTICLE VI
Acts of Holders; Meetings; Voting
---------------------------------
Section 601. Limitations on Holder's Voting Rights.
(a) Except as provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Trust Preferred
Securities shall have any right to vote or in any manner otherwise control
the administration, operation and management of the Trust or the
obligations of the parties hereto, nor shall anything herein set forth or
contained in the terms of the Trust Securities Certificates be construed so
as to constitute the Holders from time to time as members of an
association.
(b) So long as any Junior Subordinated Debentures are held by
the Property Trustee on behalf of the Trust, 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 execute any trust or power
conferred on the Property Trustee with respect to
34
such Junior Subordinated Debentures, (ii) waive any past default that may
be waived under Section 813 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior
Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Junior
Subordinated Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a
Majority in Liquidation Amount of the Trust Preferred Securities, provided,
however, that where a consent under the Indenture would require the consent
of each holder of Junior Subordinated Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written
consent of each Holder of Trust Preferred Securities. The Property Trustee
shall not revoke any action previously authorized or approved by a vote of
the Holders of Trust Preferred Securities, except by a subsequent vote of
the Holders of Trust Preferred Securities. Subject to Section 803, the
Property Trustee shall notify all Holders of the Trust Preferred Securities
of any notice of default received with respect to the Junior Subordinated
Debentures. In addition to obtaining the foregoing approvals of the Holders
of the Trust Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor,
obtain an Opinion of Counsel experienced in such matters to the effect that
such action will not cause the Trust to be taxable other than as a grantor
trust for United States Federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trust otherwise proposes to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences
or special rights of the Trust Preferred Securities, whether by way of
amendment to the Trust Agreement or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of
this Trust Agreement, then the Holders of Outstanding 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 a Majority in Liquidation Amount of the Trust
Preferred Securities; except as otherwise provided in Section 1002(c).
Notwithstanding any other provision of this Trust Agreement, no amendment
to this Trust Agreement may be made if, as a result of such amendment, it
would cause the Trust to be taxable other than as a grantor trust for
United States Federal income tax purposes.
Section 602. Notice of Meetings.
Notice of all meetings of the Holders, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in Section 1008, not
less than 21 nor more than 180 days prior to the date fixed for the meeting.
Section 603. Meetings of Holders.
(a) A meeting of any class of Holders may be called at any time
and from time to time pursuant to this Article VI to make, give or take any
request, demand,
35
authorization, direction, notice, consent, waiver or other action provided
by this Trust Agreement to be made, given or taken by Holders.
(b) The Property Trustee, by giving notice as provided in
Section 602, may at any time call a meeting of Holders for any purpose
specified in subsection (a) of this Section, to be held at such time and at
such place in the __________________________, as the Property Trustee shall
determine, or, with the approval of the Administrators, at any other place.
If the Property Trustee shall have been requested to call a meeting of the
Holders of Trust Preferred Securities by the Holders of 33% in aggregate
Liquidation Amount of all Trust Preferred Securities, for any purpose
specified in subsection (a) of this Section, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting,
and the Property Trustee shall not have given the notice of such meeting
within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the
Holders of Trust Preferred Securities in the Liquidation Amount above
specified, as the case may be, may determine the time and the place in the
____________________, or in such other place as shall be determined or
approved by the Administrators, for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in this subsection
(b). The Administrators or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Trust Preferred Securities to vote
on any matters as to which Holders are entitled to vote.
(c) Any meeting of Holders shall be valid without notice if the
Holders of all Outstanding Trust Securities, Trust Common Securities or
Trust Preferred Securities, as the case may be, are present in person or by
proxy and if representatives of the Depositor, the Trust and the Property
Trustee are present, or if notice is waived in writing before or after the
meeting by such Holders, or by such of them as are not present at the
meeting in person or by proxy, and by the Depositor, the Trust and the
Property Trustee.
(d) To be entitled to vote at any meeting of Holders of Trust
Securities, a Person shall be (a) a Holder of one or more Outstanding Trust
Securities, Trust Common Securities or Trust Preferred Securities, as the
case may be, or (b) a Person appointed by an instrument in writing as proxy
for such Holder or Holders by such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Holders of Trust Securities
shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Property Trustee and its counsel, any
representatives of the Trust and its counsel and any representatives of the
Depositor and its counsel.
(e) The Persons entitled to vote at least a Majority in
Liquidation Amount of the Outstanding Trust Securities with respect to
which a meeting shall have been called as hereinbefore provided, considered
as one class, shall constitute a quorum for a meeting of Holders of such
Trust Securities; provided, however, that if any action is to be taken at
such meeting which this Trust Agreement expressly provides may be taken by
the Holders of a specified percentage, which is less than a Majority in
Liquidation Amount, of such Outstanding Trust Securities, considered as one
class, the Persons entitled to vote
36
such specified percentage in Liquidation Amount of such Outstanding Trust
Securities, considered as one class, shall constitute a quorum. In the
absence of a quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of such
Trust Securities, be dissolved. In any other case the meeting may be
adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as
provided by Section 604(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided in subsection
(b) of this Section not less than ten days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above,
of the Liquidation Amount of the Outstanding Trust Securities which shall
constitute a quorum.
(f) Except as limited by Section 1202 of the Indenture, any
resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a Majority in Liquidation Amount of the
Outstanding Trust Securities, Trust Common Securities or Trust Preferred
Securities, as the case may be, with respect to which such meeting shall
have been called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which this Trust
Agreement expressly provides may be taken by the Holders of a specified
percentage, which is less than a Majority in Liquidation Amount, of such
Outstanding Trust Securities, considered as one class, may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such
specified percentage in Liquidation Amount of such Outstanding Trust
Securities, considered as one class.
(g) Any resolution passed or decision taken at any meeting of
Holders of Trust Securities, Trust Common Securities or Trust Preferred
Securities, as the case may be, duly held in accordance with this Section
shall be binding on all such Holders, whether or not present or represented
at the meeting.
Section 604. Attendance at Meetings; Determination of Voting Rights; Conduct
and Adjournment of Meetings.
(a) Attendance at meetings of Holders may be in person or by
proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of the Trust Securities with
respect to which it was given unless and until specifically revoked by the
Holder or future Holder of such Trust Securities before being voted.
(b) Notwithstanding any other provisions of this Trust
Agreement, the Property Trustee may make such reasonable regulations as it
may deem advisable for any
37
meeting of Holders in regard to proof of the holding of such Trust
Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Trust Securities shall be proved in the
manner specified in Section 608 and the appointment of any proxy shall be
proved in the manner specified in Section 608. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 608 or
other proof.
(c) The Property Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have
been called by the Administrators or by Holders as provided in Section
603(b), in which case the Administrators or the Holders of Trust Securities
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a Majority
in Liquidation Amount of the Outstanding Trust Securities represented at
the meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one
vote for each $___ Liquidation Amount of Trust Securities held or
represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Trust Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder
of a Trust Security or proxy.
(e) Any meeting duly called pursuant to Section 603 at which a
quorum is present may be adjourned from time to time by Persons entitled to
vote a Majority in Liquidation Amount of the Outstanding Trust Securities
as may be represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
Section 605. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders
shall be by written ballots on which shall be subscribed the signatures of the
Holders or of their representatives by proxy and the aggregate Liquidation
Amount and serial numbers of the Outstanding Trust Securities with respect to
which the meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports of all votes cast at the meeting. A record of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons
38
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was given as provided in Section 602. Each copy
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one such copy shall be delivered to the
Administrators, and another to the Property Trustee to be preserved by the
Property Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 606. Holder Action by Written Consent.
In lieu of a vote of Holders at a meeting as hereinbefore
contemplated in this Article, any request, demand, authorization, direction,
notice, consent, waiver or other action may be made, given or taken by Holders
by written instruments as provided in Section 608.
Section 607. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrators or Property Trustee may from time to time fix a
date, not more than 90 days prior to the date of any meeting of Holders or the
payment of a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Holders of record for such
purposes.
Section 608. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this Trust Agreement
to be made, given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of Holders
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders duly called and held in accordance with
the provisions of this Article VI, or a combination of such instruments and
any such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or
both are delivered to the Property Trustee. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Trust Security, shall be sufficient
for any purpose of this Trust Agreement and (subject to Section 801)
conclusive in favor of the Trustees, if made in the manner provided in this
Section. The record of any meeting of Holders shall be proved in the manner
provided in Section 605.
(b) 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
39
of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Property Trustee or the Administrator
receiving the same deems sufficient. 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.
(c) The Liquidation Amount and serial numbers of Trust
Securities held by any Person, and the date of holding the same, shall be
proved by the Securities Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every future
Holder of the same Trust Security and the Holder 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, the Administrators or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
(e) Until such time as written instruments shall have been
delivered to the Property Trustee with respect to the requisite percentage
of Liquidation Amount of Trust Securities for the action contemplated by
such instruments, any such instrument executed and delivered by or on
behalf of a Holder may be revoked with respect to any or all of such Trust
Securities by written notice by such Holder or any subsequent Holder,
proven in the manner in which such instrument was proven.
(f) Trust Securities authenticated and delivered after any Act
of Holders of such Trust Securities may, and shall if required by the
Property Trustee, bear a notation in form approved by the Property Trustee
as to any action taken by such Act of Holders. If the Administrators shall
so determine, new Trust Securities, so modified as to conform, in the
opinion of the Property Trustee and the Administrators, to such action may
be prepared and executed on behalf of the Trust by an Administrator and
authenticated and delivered by the Property Trustee in exchange for such
Outstanding Trust Securities.
(g) If the Trust (by the Administrators) shall solicit from
Holders any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Trust (by the Administrators) may, at its option,
fix in advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on the
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of the Outstanding Trust
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Trust Securities shall be computed as of the
record date.
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(h) If any dispute shall arise among the Holders, the
Administrators or the Trustees with respect to the authenticity, validity
or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Holder or Trustee under this Article
VI, then the determination of such matter by the Property Trustee shall be
conclusive with respect to such matter.
(i) A Holder may institute a legal proceeding directly against
the Depositor under the Guarantee to enforce its rights under the Guarantee
without first instituting a legal proceeding against the Guarantee Trustee
(as defined in the Guarantee), the Trust, any Trustee, any Administrator or
any person or entity.
Section 609. Inspection of Records.
Upon reasonable notice to the Administrators and the Property
Trustee, the records of the Trust shall be open to inspection by Holders during
normal business hours for any purpose reasonably related to such Holder's
interest as a Holder.
ARTICLE VII
Representations And Warranties
------------------------------
Section 701. Representations and Warranties of the Property Trustee and the
Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on
behalf of and as to itself, hereby represents and warrants for the benefit of
the Depositor and the Holders that:
(a) The Property Trustee is a banking corporation with corporate
trust powers, duly organized, validly existing and in good standing under
the laws of the State of New York, with corporate trust power and authority
to execute and deliver, and to carry out and perform its obligations under
the terms of this Trust Agreement.
(b) The execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Property Trustee; and this Trust
Agreement has been duly executed and delivered by the Property Trustee, and
constitutes a legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Property
Trustee.
41
(d) At the Closing Time, the Property Trustee has not knowingly
created any Liens on the Trust Securities.
(e) No consent, approval or authorization of, or registration
with or notice to, any New York State or Federal banking authority
governing the banking or trust powers of the Property Trustee is required
for the execution, delivery or performance by the Property Trustee, of this
Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing and
in good standing under the laws of the State of Delaware, with corporate
trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Trust Agreement.
(g) The execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee; and this Trust
Agreement has been duly executed and delivered by the Delaware Trustee, and
constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors' right generally and to general principles of equity
and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Delaware
Trustee.
(i) No consent, approval or authorization of, or registration
with or notice to any Delaware, State or Federal banking authority
governing the trust powers of the Delaware Trustee is required for the
execution, delivery or performance by the Delaware Trustee, of this Trust
Agreement.
(j) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
Section 702. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Closing Time
on behalf of the Trust have been duly authorized and will have been duly
and validly executed, and, subject to payment therefor, issued and
delivered by the Trust pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement, and the Holders
will be, as of each such date, entitled to the benefits of this Trust
Agreement; and
42
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Administrators or Trustees on behalf of the
Trust) under the laws of the State of Delaware or any political subdivision
thereof in connection with the execution, delivery and performance by
either the Property Trustee or the Delaware Trustee, as the case may be, of
this Trust Agreement.
ARTICLE VIII
The Trustees; The Administrators
--------------------------------
Section 801. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees and the
Administrators shall be as provided by this Trust Agreement, and, in the
case of the Property Trustee, by the Trust Indenture Act, and no implied
covenants or obligations shall be read into this Trust Agreement against
the Property Trustee. 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.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the
Property Trustee or a Paying Agent to make payments in accordance with the
terms hereof. Each Holder, by its acceptance of a Trust Security, agrees
that it will look solely to the revenue and proceeds from the Trust
Property to the extent legally available for distribution to it as herein
provided and that neither the Trustees nor the Administrators are
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 801(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) The Property Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default that may
have occurred, undertakes to perform such duties and only such duties as
are specifically set forth in this Trust Agreement. In case an Event of
Default of which a Responsible Officer of the Property Trustee has actual
knowledge has occurred (which has not been cured or waived), the Property
Trustee shall exercise such of the rights and powers vested in it by this
Trust Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct, except that
prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred
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(i) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this Trust
Agreement, and the Property Trustee shall not be liable except for
the performance of such duties and obligations as are specifically
set forth in this Trust Agreement, and no implied covenants or
obligations shall be read into this Trust Agreement against the
Property Trustee; and
(ii) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Property Trustee and conforming to the requirements of this
Trust Agreement; but, in the case of any such certificates or
opinions that by any provision hereof are specifically required to
be furnished to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Trust Agreement.
(e) The Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Officers of the
Property Trustee, unless it shall be proven that the Property Trustee was
negligent in ascertaining the pertinent facts.
(f) The Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith, in accordance with
the direction of the Holders of Trust Preferred Securities pursuant to
Section 513, relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee, under this Trust
Agreement.
(g) No provision of this Trust Agreement shall require the
Property Trustee 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,
satisfactory to the Property Trustee in its reasonable judgment, against
such risk or liability is not reasonably assured to it.
(h) Notwithstanding anything contained in this Trust Agreement
to the contrary, the duties and responsibilities of the Property Trustee
under this Trust Agreement shall be subject to the protections,
exculpations and limitations on liability afforded to the Property Trustee
under the provisions of the Trust Indenture Act, including those provisions
of such Act deemed by such Act to be included herein.
(i) 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 Property Trustee shall be
subject to the provisions of this Section.
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Section 802. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities may, on behalf of the Holders of all the Trust Preferred
Securities, waive any past Event of Default and its consequences, except a
default described in clause (b) or (c) of the definition of "Event of Default"
contained in Section 101, a default in respect of a covenant or provision which
under this Trust Agreement cannot be modified or amended without the consent of
the Holder of each Outstanding Trust Preferred Security or a Debenture Event of
Default that the Holders of a Majority in Liquidation Amount of the Trust
Preferred Securities would not be entitled to waive pursuant to Section 513(b).
Upon such waiver, any such Event of Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
therefrom.
Section 803. Certain Notices.
(a) Within five Business Days after the occurence of any default
hereunder of which the Property Trustee has knowledge (within the meaning
of Section 804(h) hereof), the Property Trustee shall give notice of such
default to the Holders in the manner and to the extent required to do so by
the Trust Indenture Act, unless such default shall have been cured or
waived; provided, however, that in the case of any default of the character
specified in clause (d) under the subheading "Event of Default" in Section
101, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. 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 the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the
Junior Subordinated Debentures pursuant to the Indenture, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
1008, notice of such exercise to the Holders and the Administrators, unless
such exercise shall have been revoked.
Section 804. Certain Rights of Property Trustee.
Subject to the provisions of Section 801 and to the applicable
provisions of the Trust Indenture Act:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Depositor mentioned herein
shall be sufficiently evidenced by an Officer's Certificate, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
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(c) 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, rely upon an
Officer's Certificate,
(d) the Property Trustee may consult with counsel and the 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;
(e) 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 Holder pursuant to this Trust Agreement,
unless such Holder shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) 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, bond, debenture, note, 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 (subject to
applicable legal requirements) be entitled to examine, during normal
business hours, the books, records and premises of the Trust and the
Depositor, personally or by agent or attorney;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
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; and
(h) the Property Trustee shall not be charged with knowledge of
any default or Event of Default unless either (1) a Responsible Officer of
the Property Trustee shall have actual knowledge of the default or Event of
Default or (2) written notice of such default or Event of Default (which
shall state that such notice is a "Notice of Default" or a "Notice of an
Event of Default" hereunder, as the case may be) shall have been given to
the Property Trustee by the Depositor, any Administrator, any other obligor
on Trust Preferred Securities or by any Holder of Trust Preferred
Securities.
Section 805. 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 and
the Administrators do not assume any responsibility for their correctness. The
Trustees and the Administrators shall not be accountable
46
for the use or application by the Depositor of the proceeds of the Junior
Subordinated Debentures.
Section 806. May Hold Securities.
Except as provided in the definition of the term "Outstanding" in
Article I, the Administrators, any Trustee or any other agent of any Trustee or
the Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 809 and 814, may otherwise
deal with the Trust with the same rights it would have if it were not an
Administrator, Trustee or such other agent.
Section 807. Compensation; Indemnity.
The Depositor, as borrower, shall
(a) pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, 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 costs of collection
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except to the extent that any such expense,
disbursement or advance may be attributable to its negligence, willful
misconduct or bad faith; and
(c) indemnify and hold harmless each Trustee and each
Administrator (each referred to herein as an "Indemnified Person") from and
against any and all losses, demands, claims, liabilities, causes of action
or expenses (including reasonable attorney's fees and expenses) incurred by
it arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder or the performance of its duties hereunder
(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), except to the extent any such loss,
demand, claim, liability, cause of action or expense may be attributable to
its negligence, willful misconduct or bad faith, and assume the defense of
such Indemnified Person with counsel acceptable to such Indemnified Person,
unless such Indemnified Person shall have been advised by counsel that
there may be one or more legal defenses available to it which are different
from or additional to those available to the Depositor.
No Trustee may claim any Lien on any Trust Property as a result of
any amount due pursuant to this Section.
When a Trustee incurs expenses or renders services in connection
with an Event of Default specified in clause (e) under the subheading "Event of
Default" in Section 101, the
47
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 shall survive termination of this
Trust Agreement.
Section 808. Trustees Required; Eligibility of Trustees and Administrators.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be
(i) a corporation organized and doing business under the
laws of the United States, any State or Territory thereof or the
District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least $100,000,000 and subject to supervision or examination by
Federal or State authority, or
(ii) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or other
Person organized and doing business under the laws of a foreign
government, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least
$100,000,000 or the Dollar equivalent of the applicable foreign
currency and subject to supervision or examination by authority of
such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to
United States institutional trustees,
and, in either case, qualified and eligible under this Article VIII and the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation 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 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 Administrators
hereunder. Each Administrator 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 that entity. An employee, officer or Affiliate
of the Depositor may serve as an Administrator.
(c) There shall at all times be a Delaware Trustee. 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 and that otherwise
meets the requirements of applicable Delaware law that shall act through
one or more persons authorized to bind such entity.
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Section 809. Conflicting Interests.
(a) 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.
(b) The Guarantee, the Indenture, the Guarantee Agreement dated
as of ______________ between the Depositor and ____________, as guarantee
trustee, relating to CP&L Energy Capital Trust __, and the Amended and
Restated Trust Agreement dated as of _________________ among the Depositor,
as depositor, __________________, as property trustee, ___________________,
as _____________ trustee and the administrators named therein, relating to
CP&L Energy Capital Trust __, shall be deemed to be sufficiently 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 810. Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, the Depositor and the Property
Trustee shall have power to appoint, and, upon the written request of the
Property Trustee or of the Holders of at least thirty-three per centum (33%) in
Liquidation Amount of the Trust Securities then Outstanding, the Depositor and
the Administrators shall for such purpose join with the Property Trustee in the
execution and delivery 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, or to act as separate trustee, 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 or the Administrators do
not join in such appointment within 15 days after the receipt by them of a
request so to do, or if an Event of Default shall have occurred and be
continuing, the Property Trustee alone shall have power to make such
appointment.
Should any written instrument or instruments from the Depositor be
required by any co-trustee or separate trustee so appointed to more fully
confirm 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
conditions:
(a) the Trust Securities Certificates shall be authenticated 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 Property Trustee
hereunder, shall be exercised solely, by the Property Trustee;
49
(b) 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 either 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;
(c) the Property Trustee at any time, by an instrument in
writing executed by it, with the concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, if a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate trustee
without the concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property Trustee in the
execution and delivery 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;
(d) no co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee,
or any other such trustee hereunder; and
(e) 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 811. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of any Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section
812.
(b) A Trustee may resign at any time by giving written notice
thereof to the Depositor. If the instrument of acceptance by a successor
Trustee required by Section 812 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of
resignation, the Relevant Trustee may petition any court of the State of
Delaware for the appointment of a successor Trustee.
(c) The Property Trustee or the Delaware Trustee may be removed
at any time by Act of the Holders of at least a Majority in Liquidation
Amount of the Trust Preferred Securities delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust) and to the
Depositor.
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(d) If at any time:
(1) a Trustee shall fail to comply with Section 809 after
written request therefor by the Depositor or by any Holder who has
been a bona fide Holder for at least six months, or
(2) a Trustee shall cease to be eligible under Section 808
and shall fail to resign after written request therefor by the
Depositor or by any such Holder, or
(3) a Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Relevant
Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Relevant Trustee or of its
property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (x) the Depositor by a Board Resolution may remove
the Relevant Trustee or (y) any Holder who has been a bona fide Holder for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of the State of Delaware for the removal of
the Relevant Trustee and the appointment of a successor Relevant Trustee.
(e) If a Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of any Trustee for any
cause (other than as contemplated in clause (y) in subsection (d) of this
Section), the Depositor, by a Board Resolution, shall promptly appoint a
successor Relevant Trustee and shall comply with the applicable
requirements of Section 812. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Relevant Trustee shall be appointed by Act of the Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities then Outstanding
delivered to the Depositor and the retiring Trustee, the successor Relevant
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 812,
become the successor Relevant Trustee and to that extent supersede the
successor Relevant Trustee appointed by the Depositor. If no successor
Relevant Trustee shall have been so appointed by the Depositor or the
Holders and accepted appointment in the manner required by Section 812, any
Holder who has been a bona fide Holder of a Trust Preferred Security for at
least six months may, on behalf of itself and all others similarly
situated, petition any court of the State of Delaware for the appointment
of a successor Relevant Trustee.
(f) So long as no event which is, or after notice or lapse of
time, or both, would become, an Event of Default shall have occurred and be
continuing, and except with respect to a Trustee appointed by Act of the
Holders of a Majority in Liquidation Amount of the Outstanding Trust
Preferred Securities pursuant to subsection (e) of this Section, if the
Depositor shall have delivered to the Relevant Trustee (i) a Board
Resolution appointing a successor Relevant Trustee, effective as of a date
specified therein, and (ii) an instrument of acceptance of such
appointment, effective as of such
51
date, by such successor Relevant Trustee in accordance with Section 812,
the Relevant Trustee shall be deemed to have resigned as contemplated in
subsection (b) of this Section, the successor Relevant Trustee shall be
deemed to have been appointed by the Depositor pursuant to subsection (e)
of this Section and such appointment shall be deemed to have been accepted
as contemplated in Section 812, all as of such date, and all other
provisions of this Section and Section 812 shall be applicable to such
resignation, appointment and acceptance except to the extent inconsistent
with this subsection (f).
(g) The Depositor or, should the Depositor fail so to act
promptly, the successor Relevant Trustee, at the expense of the Depositor,
shall give notice of each resignation and each removal of any Trustee and
each appointment of a successor Relevant Trustee by mailing written notice
of such event by first-class mail, postage prepaid, to all Holders of Trust
Preferred Securities as their names and addresses appear in the Securities
Register. Each notice shall include the name of the successor Relevant
Trustee and the address of its corporate trust office.
Section 812. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Relevant
Trustee, every such successor Relevant Trustee so appointed with respect to
the Trust Securities and the Trust shall execute, acknowledge and deliver
to the Depositor and to the retiring Relevant Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Relevant Trustee shall become effective and such successor
Relevant Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on the request of the Depositor or the successor
Relevant Trustee, such retiring Relevant Trustee shall, upon payment of all
sums owed to it, execute and deliver an instrument transferring to such
successor Relevant Trustee all the rights, powers and trusts of the
retiring Relevant Trustee and shall duly assign, transfer and deliver to
such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder with respect to the Trust Securities
and the Trust.
(b) Upon request of any such successor Relevant Trustee, the
Depositor shall execute any instruments which fully vest in and confirm to
such successor Relevant Trustee all such rights, powers and trusts referred
to in subsection (a) of this Section.
(c) 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 813. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the Delaware
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of such Relevant
52
Trustee, shall be the successor of the Relevant Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article VIII,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Trust Securities shall have been
authenticated, but not delivered, by the Relevant Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Trust Securities so authenticated
with the same effect as if such successor Relevant Trustee had itself
authenticated such Trust Securities.
Section 814. Preferential Collection of Claims Against Depositor or Trust.
If the Property Trustee shall be or become a creditor of the
Depositor or any other obligor upon the Trust Securities (other than by reason
of a relationship described in Section 311(b) of the Trust Indenture Act), the
Property Trustee shall be subject to any and all applicable provisions of the
Trust Indenture Act regarding the collection of claims against the Depositor or
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;
(b) the term "self-liquidating paper" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Depositor 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 arising from the making, drawing,
negotiating or incurring of the draft, ▇▇▇▇ of exchange, acceptance or
obligation.
Section 815. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of overdue Distributions)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee
53
(including any claim for amounts due to the Property Trustee under Section
807) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event that
the Property Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Property Trustee any amounts due it under Section
807.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 816. Reports by Property Trustee.
(a) Not later than _________ of each year commencing with
___________, 20__, the Property Trustee shall transmit to all Holders in
accordance with Section 1008, and to the Depositor, a brief report dated as
of the immediately preceding ________ concerning the Property Trustee and
its actions under this Trust Agreement if and as may be required pursuant
to Section 313(a) of the Trust Indenture Act.
(b) In addition the Property Trustee shall transmit to Holders
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.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with the
Depositor.
Section 817. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act. The Depositor and the Administrators shall annually file with the Property
Trustee a certificate specifying whether such Person is in compliance with all
the terms and covenants applicable to such Person hereunder, such compliance
certificate to be delivered annually on or before ________________ of each year
beginning in ______.
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Section 818. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrators 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 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 shall be given in the form of an
Officers' Certificate.
Section 819. Number of Trustees.
(a) The number of Trustees shall be two. The Property Trustee and
the Delaware Trustee may be the same Person, in which case, the number of
Trustees may be one.
(b) If a Trustee ceases to hold office for any reason, a vacancy
shall occur. The vacancy shall be filled with an Trustee appointed in
accordance with Section 811.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Trustee shall not
operate to dissolve, terminate or annul the Trust or terminate this Trust
Agreement.
Section 820. Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in
Section 207(a) or making any governmental filing; and
(b) The Administrators 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
Administrators or otherwise as the Administrators may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary
to the provisions of this Trust Agreement.
Section 821. Appointment of Administrators.
(a) The Administrators shall be appointed by the Holders of a
Majority in Liquidation Amount of the Trust Common Securities and may be
removed by the Holders of a Majority in Liquidation Amount of the Trust
Common Securities or may resign at any time. Upon any resignation or
removal, the Depositor shall appoint a successor Administrator. Each
Administrator shall execute this Trust Agreement thereby agreeing to comply
with, and be legally bound by, all of the terms, conditions and provisions
of this Trust Agreement. If at any time there is no Administrator, the
Property Trustee or any Holder who has been a Holder of Trust Securities
for at least six months may petition any court of competent jurisdiction
for the appointment of one or more Administrators.
55
(b) Whenever a vacancy in the number of Administrators shall occur,
until such vacancy is filled by the appointment of an Administrator in
accordance with this Section 821, the Administrators in office, regardless
of their number (and notwithstanding any other provision of this
Agreement), shall have all the powers granted to the Administrators and
shall discharge all the duties imposed upon the Administrators by this
Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of this
Trust Agreement, in the event any Administrator who is a natural person
dies or becomes, in the opinion of the Holders of a Majority in Liquidation
Amount of the Trust Common Securities, incompetent, or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by
the remaining Administrators, if there were at least two of them prior to
such vacancy, and by the Depositor, if there were not two such
Administrators immediately prior to such vacancy (with the successor in
each case being a Person who satisfies the eligibility requirement for
Administrators set forth in Section 808).
Section 822. Delaware Trustee.
(a) Notwithstanding any other provision of this Trust Agreement, 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
Administrators or the Property Trustee described in this Trust Agreement.
The Delaware Trustee shall be a trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust
Act.
(b) 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
_____________________________ 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,
warranties, covenants, undertakings and agreements by
________________________________ in its individual capacity but is made and
intended for the purpose of binding only the Trust, and (iii) under no
circumstances shall _________________ _________________________________ 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 undertaken 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.
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ARTICLE IX
Dissolution, Liquidation And Merger
-----------------------------------
Section 901. Dissolution Upon Expiration Date.
Unless earlier dissolved, pursuant to an Early Termination Event, the
Trust shall automatically dissolve on ____________________ (the "Expiration
Date"), and thereafter the Trust Property shall be distributed in accordance
with Section 904.
Section 902. Early Dissolution.
The first to occur of any of the following events is an "Early
Termination Event," upon the occurrence of which the Trust shall dissolve:
(a) the occurrence of the appointment of a receiver or other similar
official in any liquidation, insolvency or similar proceeding with respect
to the Depositor or all or substantially all of its property, or a court or
other governmental agency shall enter a decree or order relating to the
Depositor for relief in a voluntary or involuntary case under Chapter 7 or
Chapter 11 of the United States Bankruptcy Code or any other similar State
or Federal law now or hereafter in effect and such decree or order shall
remain unstayed and undischarged for a period of 60 days, unless the
Depositor shall transfer the Trust Common Securities as provided by Section
511, in which case this provision shall refer instead to any such successor
Holder of the Trust Common Securities;
(b) the written direction to the Property Trustee from the Holder of
the Trust Common Securities at any time to dissolve the Trust and to
distribute the Junior Subordinated Debentures to Holders in exchange for
the Trust Preferred Securities (which direction, subject to Section 904(a),
is optional and wholly within the discretion of the Holder of the Trust
Common Securities);
(c) the repayment of all of the Trust Preferred Securities in
connection with the redemption of all the Junior Subordinated Debentures;
and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 903. Termination.
As soon as is practicable after the occurrence of an event referred to
in Section 901 or 902, and upon the completion of the winding-up and liquidation
of the Trust, the Administrators and the Trustees (each of whom is hereby
authorized to take such action) shall file a certificate of cancellation with
the Secretary of State of the State of Delaware terminating the Trust and, upon
such filing, the respective obligations and responsibilities of the Trustees,
the Administrators and the Trust created and continued hereby shall terminate,
except as otherwise required by law or this Trust Agreement.
Section 904. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d)
of Section 902 occurs or upon the Expiration Date, the Trust shall be
wound-up and liquidated by the Property Trustee as expeditiously as the
Property Trustee determines to be possible by distributing, after paying or
making reasonable provision to pay all claims and obligations of the Trust
in accordance with Section 3808(e) of the Delaware Business Trust Act, to
each Holder a Like Amount of Junior Subordinated Debentures, subject to
Section 904(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not later than 15 nor
more than 45 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 Junior Subordinated Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Junior
Subordinated Debentures, or if Section 904(d) applies receive a
Liquidation Distribution, as the Administrators or the Property
Trustee shall deem appropriate.
(b) Except where Section 902(c) or 904(d) applies, in order to effect
the liquidation of the Trust and distribution of the Junior Subordinated
Debentures to Holders, the Property Trustee shall establish a record date
for such distribution (which shall be not more than 30 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
Junior Subordinated Debentures in exchange for the Outstanding Trust
Securities Certificates.
(c) Except where Section 902(c) or 904(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Depositary for the Trust Preferred Securities or its
nominee, as the registered Holder of the Global Trust Preferred Securities
Certificates, shall receive a registered global certificate or certificates
representing the Junior Subordinated Debentures to be delivered upon such
distribution with respect to Trust Preferred Securities held by the
Depositary or its nominee, and, (iii) any Trust Securities Certificates not
held by the Depositary for the Trust Preferred Securities or its nominee as
specified in clause (ii) above will be deemed to represent Junior
Subordinated Debentures having a principal amount equal to the stated
Liquidation Amount of the Trust Securities represented thereby and bearing
accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities until such certificates are
presented to the Securities Registrar for transfer or reissuance.
58
(d) If, notwithstanding the other provisions of this Section 904,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Junior Subordinated
Debentures is not practical, or if any Early Termination Event specified in
clause (c) of Section 902 occurs, the Trust shall be dissolved, and the
Trust Property shall be liquidated, by the Property Trustee in such manner
as the Property Trustee determines. In such event, on the date of the
dissolution of the Trust, Holders will be entitled to receive out of the
assets of the Trust available for distribution to Holders, after paying or
making reasonable provision to pay all claims and obligations of the Trust
in accordance with Section 3808(e) of the Delaware Business Trust Act, an
amount equal to the aggregate of Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If, upon any such
dissolution, 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 Holders of the Trust
Common Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, pro rata (determined as aforesaid) with Holders
of Trust Preferred Securities, except that, if a Debenture Event of Default
has occurred and is continuing, the Trust Preferred Securities shall have a
priority over the Trust Common Securities as provided in Section 403.
Section 905. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section 905
or Section 904. At the request of the Holders of the Trust Common Securities,
and with the consent of the Holders of at least a Majority in Liquidation Amount
of the Trust Preferred Securities, but without the consent of the Trustees, the
Trust may merge with or into, consolidate, amalgamate, 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, however,
that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Trust Preferred Securities or (b)
substitutes for the Trust Preferred Securities other securities having
substantially the same terms as the Trust Preferred Securities (the "Successor
Trust Preferred Securities") so long as the Successor Trust Preferred Securities
have the same priority as the Trust Preferred Securities with respect to
distributions and payments upon liquidation, redemption and otherwise; (ii) a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee is appointed to hold the Junior Subordinated Debentures; (iii)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Trust Preferred Securities (including any Successor
Trust Preferred Securities) to be downgraded by any nationally recognized
statistical rating organization; (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Trust Preferred Securities
(including any Successor Trust Preferred Securities) in any material respect;
(v) such successor entity has a purpose substantially
59
identical to that of the Trust; (vi) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Property Trustee
has received an Opinion of Counsel from independent 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 Trust Preferred Securities
(including any Successor Trust Preferred 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 (vii) the Depositor or any permitted transferee to whom it has
transferred the Trust Common Securities hereunder owns all of the Trust Common
Securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Trust Preferred Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing, the Trust shall
not, except with the consent of Holders of 100% in Liquidation Amount of the
Trust Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to, any other entity or permit any other entity to consolidate,
amalgamate, 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 taxable other than as a grantor trust for
United States Federal income tax purposes. Any merger or similar agreement shall
be executed by the Administrators on behalf of the Trust.
ARTICLE X
Miscellaneous Provisions
------------------------
Section 1001. Limitations of Rights of Holders.
Except as set forth in Section 902, the bankruptcy, dissolution,
termination, death or incapacity of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Holder 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 1002. Amendment.
(a) This Trust Agreement may be amended from time to time by the
Property Trustee and the Holders of a Majority in Liquidation Amount of the
Trust Common Securities, without the consent of any Holder of the Trust
Preferred Securities (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions
arising under this Trust Agreement; provided, however, that such amendment
shall not adversely affect in any material respect the interests of any
Holder; (ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the Trust
will not be taxable other than as a grantor
60
trust for United States Federal income tax purposes at any time that any
Trust Securities are Outstanding or to ensure that the Trust will not be
required to register as an investment company under the Investment Company
Act or (iii) in accordance with the requirements of Section 812.
(b) Except as provided in Section 1002(c) hereof, any provision of
this Trust Agreement may be amended by the Property Trustee and the Holders
of a Majority in Liquidation Amount of the Trust Common Securities with (i)
the consent of Holders of at least a Majority in Liquidation Amount of the
Trust Preferred 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 being taxable as a grantor trust for United States Federal
income tax purposes or the Trust's exemption from status of an "investment
company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Holder (such consent
being obtained in accordance with Section 603 or 606 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a Holder to
institute suit for the enforcement of any such payment on or after such
date.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status as an "investment company" under the Investment
Company Act or be taxable other than as a grantor trust for United States
Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrators, this Trust
Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrators or the Property Trustee shall promptly provide to the
Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Trust Agreement which affects
its own rights, duties or immunities under this Trust Agreement or
otherwise. The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any amendment to this
Trust Agreement is in compliance with this Trust Agreement.
(h) The Administrators shall give notice to the Holders of each
amendment to this Trust Agreement; provided, however, that any failure by
the Administrators to
61
deliver, or any defect in, such notice, shall not affect the validity or
effectiveness of any such amendment.
Section 1003. 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 1004. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE TRUST, THE DEPOSITOR, THE TRUSTEES AND THE ADMINISTRATORS SHALL BE
GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL NOT BE
APPLICABLE TO THE HOLDERS, THE TRUST, THE DEPOSITOR, THE TRUSTEES, THE
ADMINISTRATORS OR THIS TRUST AGREEMENT ANY PROVISION OF THE LAWS (STATUTORY OR
COMMON) OF THE STATE OF DELAWARE PERTAINING TO TRUSTS OTHER THAN THE DELAWARE
BUSINESS TRUST ACT THAT RELATE TO OR REGULATE, IN A MANNER INCONSISTENT WITH THE
TERMS HEREOF (A) THE FILING WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF
TRUSTEE ACCOUNTS OR SCHEDULES OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE
REQUIREMENTS TO POST BONDS FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (C) THE NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY,
(D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A
TRUST, (E) THE ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL,
(F) RESTRICTIONS OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR
CONCENTRATION OF TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING,
STORAGE OR OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE
ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS
ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR
LIABILITIES OR AUTHORITIES AND POWERS OF THE TRUSTEES OR THE ADMINISTRATOR AS
SET FORTH OR REFERENCED IN THIS TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF
THE DELAWARE CODE SHALL NOT APPLY TO THE TRUST.
62
Section 1005. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day (except as
otherwise provided in Section 402(d)), with the same force and effect as though
made on the date fixed for such payment, and no Distributions shall accumulate
on such unpaid amount for the period after such date.
Section 1006. Successors.
This Trust Agreement shall be binding upon and shall inure to the
benefit of any successor to the Depositor, the Trust, the Administrators and any
Trustee, including any successor by operation of law. Except in connection with
a consolidation, merger or sale involving the Depositor that is permitted under
Article XI of the Indenture and pursuant to which the assignee agrees in writing
to perform the Depositor's obligations hereunder, the Depositor shall not assign
its obligations hereunder.
Section 1007. Headings.
The Article and Section headings are for convenience only and shall
not affect the construction of this Trust Agreement.
Section 1008. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Holder or the Depositor may be given or served in writing by
deposit thereof, first class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Holder of Trust Preferred Securities, to such Holder as such Holder's name and
address may appear on the Securities Register; and (b) in the case of the Holder
of Trust Common Securities or the Depositor, to _____________________________,
Attention: ____________________, Facsimile No. _____________________ or to such
other address as may be specified in a written notice by the Depositor to the
Property Trustee. Such notice, demand or other communication to or upon a
Holder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission. Such notice, demand or
other communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Depositor.
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 Administrators
shall be given in writing addressed (until another address is published by the
Trust) as follows: (a) with respect to the Property Trustee to
_________________, _____________________, Attention: Corporate Trustee
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ (▇) with respect to the Delaware Trustee to ___________________,
__________________________, Attention: Corporate Trustee Administration
Department; (c) with respect to the Administrators, to them at the address above
for notices to the Depositor, marked "Attention: Office of the Chief Financial
Officer" and (d) with respect to the Trust to CP&L Energy Capital Trust __, c/o
CP&L Energy, Inc., _______________________________, Attention:
____________________. Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust, the Property Trustee,
or such Administrator.
Section 1009. Agreement Not to Petition.
Each of the Trustees, the Administrators and the Depositor agree for
the benefit of the Holders that, until at least one year and one day after the
Trust has been terminated in accordance with Article IX, they shall not file, or
join in the filing of, a petition against the Trust under any bankruptcy,
insolvency, reorganization 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 1009, the Property Trustee agrees, for the benefit of Holders, that at
the expense of the Depositor, it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such petition by the Depositor
against the Trust or the commencement of such action and raise the defense that
the Depositor has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as counsel for
the Property Trustee or the Trust may assert. If any Trustee or Administrator
takes action in violation of this Section 1009, the Depositor agrees, for the
benefit of the Holders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such petition by such Person against the Trust or the commencement of such
action and raise the defense that such Person has agreed in writing not to take
such action and should be estopped and precluded therefrom and such other
defenses, if any, as counsel for the Depositor may assert. The provisions of
this Section 1009 shall survive the termination of this Trust Agreement.
Section 1010. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) Trust Indenture Act; Application. (i) This Trust Agreement is
subject to the provisions of the Trust Indenture Act that are required to
be a part of this Trust Agreement and shall, to the extent applicable, be
governed by such provisions; (ii) if and to the extent that any provision
of this Trust Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control; (iii) if any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed
to apply to this Trust Agreement as so modified or excluded as the case may
be, (iv) for purposes of this Trust Agreement, the Property Trustee, to the
extent permitted by applicable law and/or the rules and regulations of the
Commission, shall be the only Trustee which is a trustee for the purposes
of the Trust Indenture Act; and (v) the application of the Trust Indenture
Act to this Trust Agreement
64
shall not affect the nature of the Trust Preferred Securities and the Trust
Common Securities as equity securities representing undivided beneficial
interests in the assets of the Trust.
(b) Disclosure Information. The disclosure of information as to the
names and addresses of the Holders of Trust Securities in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which
such information was derived, shall not be deemed to be a violation of any
existing law or any law hereafter enacted which does not specifically refer
to Section 312 of the Trust Indenture Act, nor shall the Property Trustee
be held accountable by reason of mailing any material pursuant to a request
made under Section 312(b) of the Trust Indenture Act.
Section 1011. Acceptance of Terms of Trust Agreement, Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY
OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AND THE
INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF
THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE
TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH HOLDER AND SUCH OTHERS.
* * * *
This instrument 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.
65
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed, all as of the day and year first above written.
CP&L ENERGY, INC.
as Depositor
By:__________________________
Name:________________________
Title: Chief Financial Officer
_____________________________________________
as Property Trustee, and not in its individual
capacity
By:__________________________
Name:________________________
Title: Trust Officer
____________________________________,
as Delaware Trustee, and not
in its individual capacity
By: ________________________
Name:
Title:
Agreed to and Accepted by,
________________________
Name: _________________________
Title: Administrator
________________________
Name: __________________________
Title: Administrator
66
EXHIBIT A
[INSERT CERTIFICATE OF TRUST FILED WITH DELAWARE]
A-1
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 511 OF THE TRUST AGREEMENT
Certificate Number Number of Trust Common Securities
C-1 _________
($____________ Aggregate Liquidation Amount)
Certificate Evidencing Trust Common Securities
of
CP&L ENERGY CAPITAL TRUST __
_________% Trust Common Securities
(liquidation amount $______ per Trust Common Security)
CP&L Energy Capital Trust __, a statutory business trust created under
the laws of the State of Delaware, (the "Trust"), hereby certifies that CP&L
Energy, Inc. (the "Holder") is the registered owner of ___________________
(________ ) Trust Common Securities of the Trust representing undivided
beneficial interests in the assets of the Trust and designated as the CP&L
Energy Capital Trust _______% Trust Common Securities (liquidation amount
$______ per Trust Common Security) (the "Trust Common Securities"). Except in
accordance with Section 511 of the Trust Agreement (as defined below) the Trust
Common Securities are not transferable and any attempted transfer hereof other
than in accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Trust Common Securities are set forth in, and this certificate and the Trust
Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust, dated as of ___________________, as the same may be amended from
time to time (the "Trust Agreement") among ___________________________, as
Depositor, _____________________________, as Property Trustee,
________________________________, as ____________ Trustee, the Administrators
named therein and the Holders of Trust Securities, including the designation of
the terms of the Trust Common Securities as set forth therein. The Trust will
furnish a copy of
B-1
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.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Trust has
executed this certificate this ___ day of ______________, 200_.
CP&L ENERGY CAPITAL TRUST __
By:_________________________________
___________________________
Administrator
Certificate of Authentication:
This is one of the Trust Common Securities referred to in the within mentioned
Trust Agreement.
____________________________________,
as Property Trustee
By: ________________________
Authorized Officer
B-2
EXHIBIT C
[IF THE TRUST PREFERRED SECURITIES CERTIFICATE IS TO BE A GLOBAL TRUST PREFERRED
SECURITIES CERTIFICATE, INSERT:]This Trust Preferred Securities Certificate is a
Global Trust Preferred Securities Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of the
Depositary or a nominee of the Depositary. This Trust Preferred Securities
Certificate is exchangeable for Trust Preferred Securities Certificates
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Trust Agreement and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary, except in the limited circumstances described in the Trust
Agreement.
Unless this Trust Preferred Securities Certificate is presented by an
authorized representative of The Depositary Trust Company, a New York
corporation ("DTC"), to CP&L Energy Capital Trust __or its agent for
registration of transfer, exchange or payment, and any Trust Preferred
Securities Certificate issued is registered in the name of Cede & Co. or 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 A PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT ACCOUNT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE
"PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD
THIS TRUST PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST HEREIN, UNLESS SUCH
PURCHASE OR HOLDING IS COVERED BY THE EXEMPTIVE RELIEF PROVIDED BY U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-
60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH
PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS TRUST PREFERRED SECURITIES
CERTIFICATE OR ANY INTEREST HEREIN THAT IS A PLAN OR A PLAN ASSET ENTITY OR IS
PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF THAT (A) THE PURCHASE AND
HOLDING OF THE TRUST PREFERRED SECURITIES IS COVERED BY THE EXEMPTIVE RELIEF
PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE
EXEMPTION, (B) THE DEPOSITOR AND THE ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN
THE MEANING OF SECTION 3(21) OF ERISA AND THE REGULATIONS THEREUNDER, WITH
RESPECT
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TO SUCH PERSON'S INTEREST IN THE TRUST PREFERRED SECURITIES OR THE JUNIOR
SUBORDINATED DEBENTURES, AND (C) IN PURCHASING THE TRUST PREFERRED SECURITIES
SUCH PERSON APPROVES THE PURCHASE OF THE JUNIOR SUBORDINATED DEBENTURES AND THE
APPOINTMENT OF THE TRUSTEES.
Certificate Number Aggregate Liquidation ▇▇▇▇▇▇
▇-▇ $__________
(__________ Trust Preferred Securities)
CUSIP NO. ___________________
Certificate Evidencing Trust Preferred Securities
of
CP&L Energy Capital Trust __
________% Trust Preferred Securities
(liquidation amount $_____ per Trust Preferred Security)
CP&L Energy Capital Trust __, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
______________________ (the "Holder") is the registered owner of
_______________________ Dollars ($____________) aggregate liquidation amount of
Trust Preferred Securities of the Trust representing a preferred undivided
beneficial interest in the assets of the Trust and designated as the CP&L Energy
Capital Trust _________% Trust Preferred Securities (liquidation amount $_____
per Trust Preferred Security) (the "Trust Preferred Securities"). The Trust
Preferred Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 505 of the Trust
Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Trust Preferred
Securities are set forth in, and this certificate and the Trust Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of ____________________, as the same may be amended from time to
time (the "Trust Agreement"), among ________________________________, as
Depositor, _______________________________, as Property Trustee,
___________________________________________ , as _____________ Trustee, the
Administrators named herein and the Holders of Trust Securities, including the
designation of
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the terms of the Trust Preferred Securities as set forth therein. The Holder is
entitled to the benefits of the Guarantee Agreement entered into by
___________________________, a _______________________corporation, as Guarantor,
and ________________________________, as Guarantee Trustee, dated as of
____________________ __________________________(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.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Trust has
executed this certificate this ____ day of ___________________.
CP&L ENERGY CAPITAL TRUST __
By:_________________________________
Name:__________________________
Administrator
Administrator
-------------
This is one of the Trust Preferred Securities referred to in the within
mentioned Trust Agreement.
________________________________
as Property Trustee
By: ________________________
Authorized Signatory
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Trust Preferred
Security to:
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints _____________________________________________________
______________________________________________________________________________
agent to transfer this Trust Preferred Securities Certificate on the books of
the Trust. The agent may substitute another to act for him or her.
Date:________________________
Signature:___________________________________________________________
(Sign exactly as your name appears on the other side of
this Trust Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
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