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EXHIBIT 4.4
SEI TRUST I
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
SOUTHERN ENERGY, INC., AS DEPOSITOR,
BANKERS TRUST COMPANY, AS PROPERTY TRUSTEE,
BANKERS TRUST (DELAWARE), AS DELAWARE TRUSTEE,
AND
ELIZABETH B. CHANDLER, J. WILLIAM HOLDEN, III AND DOUGLAS L. MILLER
AS ADMINISTRATIVE TRUSTEES
DATED AS OF ___________, 2000
<PAGE> 2
SEI TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
<TABLE>
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Section 310(a)(1) ....................................................8.07
(a)(2) ......................................................8.07
(a)(3) ......................................................8.09
(a)(4) ............................................Not Applicable
(b) .........................................................8.08
Section 311(a) .......................................................8.13
(b) .........................................................8.13
Section 312(a) .......................................................5.07
(b) .........................................................5.07
(c) .........................................................5.07
Section 313(a) ....................................................8.14(a)
(a)(4) ...................................................8.14(b)
(b) ......................................................8.14(b)
(c) ......................................................8.14(a)
(d) .............................................8.14(a), 8.14(b)
Section 314(a) .......................................................8.15
(b) ...............................................Not Applicable
(c)(1) ................................................8.15, 8.16
(c)(2) ......................................................8.16
(c)(3) ......................................................8.16
(d) ...............................................Not Applicable
(e) .........................................................8.16
Section 315(a) .......................................................8.01
(b) ................................................8.02, 8.14(b)
(c) ......................................................8.01(a)
(d) ...................................................8.01, 8.03
(e) ...............................................Not Applicable
Section 316(a) .............................................Not Applicable
(a)(1)(A) ...................................................8.19
(a)(1)(B) ...................................................8.19
(a)(2) ............................................Not Applicable
(b) ...............................................Not Applicable
(c) ...............................................Not Applicable
Section 317(a)(1) ..........................................Not Applicable
(a)(2) ............................................Not Applicable
(b) .........................................................5.09
Section 318(a) ......................................................10.10
</TABLE>
---------------
Note: This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms and
provisions.
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TABLE OF CONTENTS
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ARTICLE I.........................................................................................................2
Defined Terms.....................................................................................................2
Section 1.01 Definitions.................................................................................2
ARTICLE II.......................................................................................................10
Establishment of the Trust.......................................................................................10
Section 2.01 Name.......................................................................................10
Section 2.02 Offices of the Trustees; Principal Place of Business.......................................10
Section 2.03 Initial Contribution of Trust Property; Organizational Expenses............................11
Section 2.04 Issuance of the Preferred Securities.......................................................11
Section 2.05 Subscription and Purchase of Junior Subordinated Notes; Issuance of
the Common Securities..........................................................................11
Section 2.06 Declaration of Trust.......................................................................12
Section 2.07 Authorization to Enter into Certain Transactions...........................................12
Section 2.08 Assets of Trust............................................................................16
Section 2.09 Title to Trust Property....................................................................16
Section 2.10 Mergers and Consolidations of the Trust....................................................16
ARTICLE III......................................................................................................17
Payment Account..................................................................................................17
Section 3.01 Payment Account............................................................................17
ARTICLE IV.......................................................................................................18
Distributions; Redemption; Conversion............................................................................18
Section 4.01 Distributions..............................................................................18
Section 4.02 Redemption.................................................................................19
Section 4.03 Subordination of Common Securities.........................................................21
Section 4.04 Payment Procedures.........................................................................21
Section 4.05 Conversion.................................................................................21
Section 4.06 Tax Returns and Reports....................................................................24
ARTICLE V........................................................................................................24
Trust Securities Certificates....................................................................................24
Section 5.01 Initial Ownership..........................................................................24
Section 5.02 The Trust Securities Certificates..........................................................24
Section 5.03 Authentication of Trust Securities Certificates............................................24
</TABLE>
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Section 5.04 Registration of Transfer and Exchange of Preferred Securities Certificates.................25
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.........................25
Section 5.06 Persons Deemed Securityholders.............................................................26
Section 5.07 Access to List of Securityholders' Names and Addresses.....................................26
Section 5.08 Maintenance of Office or Agency............................................................26
Section 5.09 Appointment of Paying Agent................................................................26
Section 5.10 Ownership of Common Securities by Depositor................................................27
Section 5.11 Book-Entry Preferred Securities Certificates; Common Securities Certificate................27
Section 5.12 Notices to Clearing Agency.................................................................28
Section 5.13 Definitive Preferred Securities Certificates...............................................28
Section 5.14 Rights of Securityholders..................................................................29
ARTICLE VI.......................................................................................................29
Acts of Securityholders; Meetings; Voting........................................................................29
Section 6.01 Limitations on Voting Rights...............................................................29
Section 6.02 Notice of Meetings.........................................................................30
Section 6.03 Meetings of Preferred Securityholders......................................................30
Section 6.04 Voting Rights..............................................................................31
Section 6.05 Proxies, etc...............................................................................31
Section 6.06 Securityholder Action by Written Consent...................................................31
Section 6.07 Record Date for Voting and Other Purposes..................................................31
Section 6.08 Acts of Securityholders....................................................................31
Section 6.09 Inspection of Records......................................................................32
ARTICLE VII......................................................................................................32
Representations and Warranties of the Trustees...................................................................32
Section 7.01 Representations and Warranties of Property Trustee.........................................32
Section 7.02 Representations and Warranties of Delaware Trustee.........................................33
ARTICLE VIII.....................................................................................................34
The Trustees.....................................................................................................34
Section 8.01 Certain Duties and Responsibilities........................................................34
Section 8.02 Notice of Defaults.........................................................................34
Section 8.03 Certain Rights of Property Trustee.........................................................34
Section 8.04 Not Responsible for Recitals or Issuance of Securities.....................................36
Section 8.05 May Hold Securities........................................................................36
Section 8.06 Compensation; Fees; Indemnity..............................................................36
Section 8.07 Trustees Required; Eligibility.............................................................37
Section 8.08 Conflicting Interests......................................................................37
Section 8.09 Co-Trustees and Separate Trustee...........................................................37
Section 8.10 Resignation and Removal; Appointment of Successor..........................................39
</TABLE>
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Section 8.11 Acceptance of Appointment by Successor.....................................................40
Section 8.12 Merger, Conversion, Consolidation or Succession to Business................................40
Section 8.13 Preferential Collection of Claims Against Depositor or Trust...............................40
Section 8.14 Reports by Property Trustee................................................................41
Section 8.15 Reports to the Property Trustee............................................................41
Section 8.16 Evidence of Compliance with Conditions Precedent...........................................41
Section 8.17 Number of Trustees.........................................................................41
Section 8.18 Delegation of Power........................................................................42
Section 8.19 Enforcement of Rights of Property Trustee by Securityholders...............................42
ARTICLE IX.......................................................................................................43
Termination and Liquidation......................................................................................43
Section 9.01 Termination Upon Expiration Date...........................................................43
Section 9.02 Early Termination..........................................................................43
Section 9.03 Termination................................................................................43
Section 9.04 Liquidation................................................................................44
Section 9.05 Bankruptcy.................................................................................45
ARTICLE X........................................................................................................45
Miscellaneous Provisions.........................................................................................45
Section 10.01 Guarantee by the Depositor................................................................45
Section 10.02 Limitation of Rights of Securityholders...................................................45
Section 10.03 Amendment.................................................................................46
Section 10.04 Separability..............................................................................47
Section 10.05 Governing Law.............................................................................47
Section 10.06 Successors................................................................................47
Section 10.07 Headings..................................................................................47
Section 10.08 Notice and Demand.........................................................................47
Section 10.09 Agreement Not to Petition.................................................................48
Section 10.10 Conflict with Trust Indenture Act.........................................................48
</TABLE>
EXHIBIT A Form of Notice of Conversion
EXHIBIT B [INTENTIONALLY RESERVED]
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
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AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of ___________,
2000, by and among (i) Southern Energy, Inc., a Delaware corporation (the
"Depositor" or the "Company"), (ii) Bankers Trust Company, a banking corporation
duly organized and existing under the laws of New York, as trustee (the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Trustee, the "Bank"), (iii) Bankers Trust (Delaware), a banking
corporation duly organized under the laws of Delaware, as Delaware trustee (the
"Delaware Trustee" and, in its separate corporate capacity and not in its
capacity as Delaware Trustee, the "Delaware Bank"), (iv) Elizabeth B. Chandler,
an individual, J. William Holden, III, an individual, and Douglas L. Miller, an
individual, as administrative trustees (each an "Administrative Trustee" and
together the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Trust Agreement, dated as of June
30, 2000 (the "Original Trust Agreement"), and by the execution and filing by
the Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, dated June 30, 2000; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the addition of the Bank, Elizabeth B. Chandler, John W. Holden, III
and Douglas L. Miller as trustees of the Trust, (ii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the Junior
Subordinated Notes, (iii) the issuance of the Common Securities by the Trust to
the Depositor, and (iv) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
<PAGE> 7
ARTICLE I
DEFINED TERMS
Section 1.01 Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(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;
(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) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Preference and/or a given period, an amount equal to the Additional
Interest (as defined in clause (ii) of the definition of "Additional Interest"
in the Subordinated Indenture) paid by the Depositor on a Like Amount of Junior
Subordinated Notes for such period.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in their
capacities as Administrative Trustees of the Trust formed and continued
hereunder and not in their individual capacities, or such trustee's successor(s)
in interest in such capacity, or any successor "Administrative Trustee"
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
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<PAGE> 8
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under federal bankruptcy law or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such
Person or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under federal bankruptcy law or any other applicable federal
or state law, or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors or a duly authorized committee thereof and
to be in full force and effect on the date of such certification, and delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form to the
Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the Indenture Trustee's principal corporate trust office is closed for
business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Property Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated ________ __, 2000, relating to the Preferred Securities
Certificates, as the same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
3
<PAGE> 9
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" of the Common Stock on any date means the price, as of
the close of business on such date, of the Common Stock, as reported on the New
York Stock Exchange Consolidated Tape, or if the Common Stock is not then listed
on the New York Stock Exchange, as reported by the principal securities exchange
or interdealer quotation system on which the Common Stock is then traded.
"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 Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership interest in
the assets of the Trust having a Liquidation Preference of $50 and having the
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form attached
as Exhibit C.
"Common Stock" means common stock, par value $.01 per share, of the
Depositor.
"Company" means Southern Energy, Inc.
"Conversion Agent" has the meaning specified in Section 4.05.
"Conversion Date" has the meaning specified in Section 4.05.
"Conversion Price" has the meaning specified in Section 4.05.
"Corporate Trust Office" means the office of the Property Trustee at
which its corporate trust business shall be principally administered.
"Current Market Price", with respect to Common Stock, means for any day
the last reported sale price, regular way, on such day, or, if no sale takes
place on such day, the average of the reported closing bid and asked prices on
such day, regular way, in either case as reported on the New York Stock Exchange
Consolidated Transactions Tape, or, if Common Stock is not listed or admitted to
trading on the New York Stock Exchange on such day, on the principal national
securities exchange on which Common Stock is listed or admitted to trading, if
Common Stock is listed on a national securities exchange, or the Nasdaq National
Market, or, if
4
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Common Stock is not quoted or admitted to trading on such quotation system, on
the principal quotation system on which Common Stock may be listed or admitted
to trading or quoted, or, if not listed or admitted to trading or quoted on any
national securities exchange or quotation system, the average of the closing bid
and asked prices of Common Stock in the over-the-counter market on the day in
question as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner, as
furnished by any New York Stock Exchange member firm selected from time to time
by the Board of Directors for that purpose or, if not so available in such
manner, as otherwise determined in good faith by the Board of Directors.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (i) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time.
"Delaware Trustee" means the commercial bank or trust company or any
other Person identified as the "Delaware Trustee" and has the meaning specified
in the preamble to this Trust Agreement solely in its capacity as Delaware
Trustee of the Trust formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware Trustee appointed as herein provided.
"Depositor" means Southern Energy, Inc., in its capacity as "Depositor"
under this Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Event of Default" means the occurrence of an Indenture Event of
Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Company and the Trust, substantially in the form attached as Exhibit
D, as amended from time to time.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Company and Bankers Trust Company, as Guarantee Trustee, contemporaneously with
the execution and delivery
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of this Trust Agreement, for the benefit of the Holders of the Preferred
Securities, as amended from time to time.
"Indenture Event of Default" means an "Event of Default" as defined in
the Subordinated Indenture.
"Indenture Redemption Date" means "Redemption Date," as defined in the
Subordinated Indenture.
"Indenture Trustee" means the trustee under the Subordinated Indenture.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Issue Date" means the date of the delivery of the Trust Securities.
"Junior Subordinated Notes" means the $__________ aggregate principal
amount of the Depositor's Series __ ____% Junior Convertible Subordinated Notes,
Series due 2030, issued pursuant to the Subordinated 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 (i) Trust Securities having a Liquidation
Preference equal to the principal amount of Junior Subordinated Notes to be
contemporaneously redeemed in accordance with the Subordinated Indenture and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) Junior Subordinated Notes having a principal amount equal to
the Liquidation Preference of the Trust Securities of the Holder to whom such
Junior Subordinated Notes are distributed.
"Liquidation Date" means the date on which Junior Subordinated Notes
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section 9.05.
"Liquidation Preference" means the stated amount of $50 per Trust
Security.
"Notice of Conversion" means the notice given by a Holder of Preferred
Securities to the Conversion Agent directing the Conversion Agent to exchange
such Preferred Security for Junior Subordinated Notes and to convert such Junior
Subordinated Notes and to convert such Junior Subordinated Notes into Common
Stock on behalf of such Holder. Such notice is substantially in the form set
forth in Exhibit A.
6
<PAGE> 12
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Depositor. An Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such officer's
opinion, to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to federal income tax matters may
rely on published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation or tendered for conversion;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of
which other Preferred Securities have been authenticated and delivered
pursuant to this Trust Agreement;
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provided, however, that in determining whether the Holders of the requisite
Liquidation Preference of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, the Holder of the Common
Securities, any Administrative Trustee or any Affiliate of the Depositor or any
Administrative Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, the Holder of
the Common Securities, one or more Administrative Trustees and/or any such
Affiliate. Preferred Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the
Securityholders in which all amounts paid in respect of the Junior Subordinated
Notes will be held and from which the Property Trustee shall make payments to
the Securityholders in accordance with Section 4.01.
"Person" means an individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial ownership interest
in the assets of the Trust having a Liquidation Preference of $50 and having
rights provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of a Preferred Security or Securities, substantially in the form
attached as Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor "Property Trustee" as herein provided.
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<PAGE> 14
"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 Indenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for redemption
of any Trust Security, the Liquidation Preference of such Trust Security, plus
accrued and unpaid Distributions to such date, plus the related amount of the
premium, if any, paid by the Depositor upon the concurrent redemption or
repayment of a Like Amount of Junior Subordinated Notes.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" are described in
Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
is a beneficial owner within the meaning of the Delaware Business Trust Act.
"Spin-Off" means the distribution by The Southern Company of [all of]
its shares of the Common Stock to the holders of its common stock.
"Subordinated Indenture" means the Subordinated Note Indenture, dated
as of __________ __, 2000, between the Depositor and the Indenture Trustee, as
supplemented by the Supplemental Indenture.
"Supplemental Indenture" means the First Supplemental Indenture, dated
as of ______ __, 2000, by and between the Depositor and the Indenture Trustee.
"Trading Day" means any day on which Common Stock (i) is not suspended
from trading on the principal securities exchange or interdealer quotation
system on which it is traded at the close of business and (ii) has traded at
least once on such principal securities exchange or inter dealer quotation
system.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Amended and Restated Trust Agreement and any modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"Trustees" means the Persons identified as "Trustees" in the preamble
to this Trust Agreement solely in their capacities as Trustees of the Trust
formed and continued hereunder and
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not in their individual capacities, or their successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes, (ii) any cash
on deposit in, or owing to, the Payment Account, and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement, dated
September __, 2000, among the Trust, the Depositor and the underwriters named
therein.
"Underwriters" means the underwriters named in the Underwriting
Agreement.
"Underwriters' Over-Allotment Option" means the Underwriters' option to
purchase up to an additional _____ Preferred Securities pursuant to the
Underwriting Agreement.
"Underwriters' Over-Allotment Option Closing Date" means the closing of
the transactions contemplated by the Underwriters' Over-Allotment Option.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 Name. The Trust continued hereby shall be known as
"SEI Trust I", in which name the Trustees may conduct the business of the Trust,
make and execute contracts and other instruments on behalf of the Trust and sue
and be sued. The Administrative Trustees may change the name of the Trust from
time to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business.
The address of the Property Trustee is Bankers Trust Company, Four Albany
Street, New York, New York 10006, or at such other address as the Property
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal place of business of the Delaware Trustee is E.A. Delle
Donne Corporate Center, Montgomery Building, 1011 Centre Road, Suite 200,
Wilmington, Delaware, 19805-1266, or at such other address in Delaware as the
Delaware Trustee may designate by notice
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to the Depositor. The address of the Administrative Trustees is c/o Southern
Energy, Inc., 900 Ashwood Parkway, Suite 500, Atlanta, Georgia 30338, Attention:
Treasurer. The principal place of business of the Trust is c/o Southern Energy,
Inc., 1403 Foulk Road, Suite 102, Wilmington, Delaware 19803. The Depositor may
change the principal place of business of the Trust at any time by giving notice
thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property;
Organizational Expenses. The Delaware Trustee acknowledges receipt in trust from
the Depositor in connection with the Original Trust Agreement of the sum of $10,
which constituted the initial Trust Property. The Depositor shall pay
organizational expenses of the Trust as they arise or shall, upon request of the
Trustees, promptly reimburse the Trustees for any such expenses paid by the
Trustees. The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.
Section 2.04 Issuance of the Preferred Securities.
Contemporaneously with the execution and delivery of this Trust Agreement, the
Administrative Trustees, on behalf of the Trust, shall execute and deliver to
the Underwriters Preferred Securities Certificates, registered in the name of
the nominee of the initial Clearing Agency, in an aggregate amount of _________
Preferred Securities having an aggregate Liquidation Preference of $______,
against receipt of the aggregate purchase price of such Preferred Securities of
$________, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee. In addition, in connection with the Underwriters'
Over-Allotment Option, the Administrative Trustees, on behalf of the Trust, may
execute and deliver to the Underwriters Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency, in an
additional aggregate amount of up to _________ Preferred Securities having an
Aggregate Liquidation Preference of up to $___________, against receipt of the
aggregate purchase price of such Preferred Securities, which amount the
Administrative Trustees shall promptly deliver to the Property Trustee.
Section 2.05 Subscription and Purchase of Junior Subordinated
Notes; Issuance of the Common Securities. Contemporaneously with the execution
and delivery of this Trust Agreement, the Administrative Trustees, on behalf of
the Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
_______ Common Securities having an aggregate Liquidation Preference of
$_______, against payment by the Depositor of such amount. Contemporaneously
therewith, the Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Junior Subordinated Notes, registered in the
name of the Property Trustee, on behalf of the Trust and the Holders, and having
an aggregate principal amount equal to $_______, and, in satisfaction of the
purchase price for such Junior Subordinated Notes, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of $_________. In
addition, in connection with any Underwriters' Over-Allotment Option, the
Administrative Trustees, on behalf of the Trust, shall execute and deliver to
the Depositor Common Securities Certificates, registered in the name of the
Depositor, representing Common Securities having an aggregate Liquidation
Preference of at least 3% of the aggregate Liquidation Preference of Common
Securities issued pursuant to this sentence and the Preferred Securities
delivered pursuant to the Underwriter's Over-Allotment Option. Contemporaneously
therewith, the Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Junior Subordinated Notes, registered in the
name of the
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Property Trustee, on behalf of the Trust and the Holders, and having an
aggregate principal amount equal to the aggregate Liquidation Preference of the
Trust Securities delivered to the Underwriters and the Depositor, and, in
satisfaction of the purchase of such additional Junior Subordinated Notes, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor an
amount equal to the aggregate Liquidation Preference of the additional Trust
Securities in connection with the Underwriters' Over-Allotment Option.
Section 2.06 Declaration of Trust. The exclusive purposes and
functions of the Trust are (i) to issue and sell the Trust Securities and use
the proceeds from such sale to acquire the Junior Subordinated Notes, and (ii)
to engage in those activities necessary, incidental, appropriate or convenient
thereto. The Depositor hereby appoints each of the Bank, the Delaware Bank,
Elizabeth B. Chandler, J. William Holden, III and Douglas L. Miller as trustees
of the Trust, to have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
benefit of the Trust and the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees for the sole and limited purpose of fulfilling the requirements of
the Delaware Business Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in paragraph C of
this Section, and in accordance with the following paragraphs A and B, the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express (in the case of the Property Trustee) or implied, otherwise granted to
the Trustees under this Trust Agreement, and to perform all acts in furtherance
thereof, including without limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting
singly or jointly, shall have the exclusive power, duty and authority to act on
behalf of the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Notes with the
proceeds of the sale of the Trust Securities; provided, however, the
Administrative Trustees shall cause legal title to all of the Junior
Subordinated Notes to be vested in, and the Junior Subordinated Notes
to be held of record in the name of, the Property Trustee for the
benefit of the Trust and Holders of the Trust Securities;
(ii) to give the Depositor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in
the Supplemental Indenture) and to take any ministerial actions in
connection therewith; provided, that the Administrative Trustees shall
consult with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a Special
Event;
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(iii) to establish a record date with respect to all
actions to be taken hereunder that require a record date to be
established, including for the purposes of ss. 316(c) of the Trust
Indenture Act and with respect to Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to Holders of
the Trust Securities as to such actions and applicable record dates;
(iv) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action or otherwise adjust claims or demands
of or against the Trust ("Legal Action"), unless pursuant to Section
2.07(B)(v), the Property Trustee has the power to bring such Legal
Action;
(v) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers,
contractors, advisors and consultants and pay reasonable compensation
for such services;
(vi) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee
required by ss. 314(a)(4) of the Trust Indenture Act, which certificate
may be executed by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of this
Trust Agreement;
(ix) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's
valid existence, rights, franchises and privileges as a statutory
business trust under the laws of the State of Delaware and of each
other jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Trust Securities or to enable
the Trust to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all applicable
tax returns and tax information reports that are required to be filed
with respect to the Trust to be duly prepared and filed by any
Administrative Trustee, on behalf of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense Agreement and
the Certificate Depository Agreement and such other agreements as may
be necessary or desirable in connection with the consummation hereof;
(xiii) to assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
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(xiv) to assist in the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be determined by
the Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and
other information regarding the Trust Securities and the Junior
Subordinated Notes to the Securityholders in accordance with this Trust
Agreement;
(xvi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Securities Registrar in accordance with this
Trust Agreement;
(xvii) to register transfers of the Trust Securities in
accordance with this Trust Agreement;
(xviii) to incur expenses that are necessary or incidental to
carry out any purpose of the Trust;
(xix) to assist in, to the extent provided in this Trust
Agreement, the winding up of the affairs of and termination of the
Trust and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware; and
(xx) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
B. The Property Trustee shall:
(i) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Trust
Securities to the extent the Junior Subordinated Notes are redeemed or
mature;
(ii) upon notice of distribution issued by the
Administrative Trustees in accordance with the terms of this Trust
Agreement, engage in such ministerial activities as shall be necessary
or appropriate to effect the distribution pursuant to the terms of this
Trust Agreement of Junior Subordinated Notes to Holders of Trust
Securities;
(iii) subject to the terms hereof, take any Legal Action
which arises out of or in connection with an Event of Default of which
a Responsible Officer of the Property Trustee has actual knowledge or
the Property Trustee's duties and obligations under this Trust
Agreement or the Trust Indenture Act; and
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(iv) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms of
this Trust Agreement.
C. So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a grantor trust for United States federal
income tax purposes, (iv) incur any indebtedness for borrowed money, (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property, (vi) issue any securities other than the Trust Securities, or
(vii) have any power to, or agree to any action by the Depositor that would,
vary the investment (within the meaning of Treasury Regulation Section
301.7701-4(c)) of the Trust or of the Securityholders. The Trustees shall defend
all claims and demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Trust or the Securityholders
in their capacity as Securityholders.
D. In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission a registration statement on Form S-1 under the Securities
Act of 1933, as amended, in relation to the Preferred Securities,
including any amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) to prepare for filing by the Trust an application to
the New York Stock Exchange or any other national stock exchange or the
NASDAQ National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
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(v) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities and to execute,
deliver and perform the Underwriting Agreement on behalf of the Trust;
and
(vi) any other actions necessary, incidental, appropriate
or convenient to carry out any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the Investment Company Act
or taxed as other than a grantor trust for United States federal income tax
purposes and so that the Junior Subordinated Notes will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Securityholders and the Trust in accordance with this Trust
Agreement. The right, title and interest of the Property Trustee to the Junior
Subordinated Notes shall vest automatically in each Person who may thereafter be
appointed as Property Trustee in accordance with the terms hereof. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust
may not consolidate, convert into, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below or otherwise provided in this Trust Agreement. The Trust may at
the request of the Company, with the consent of the Administrative Trustees and
without the consent of the Holders of the Trust Securities, the Delaware Trustee
or the Property Trustee, consolidate, convert into, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, a trust organized as such under the laws of any
state; provided, that (i) such successor entity either (x) expressly assumes all
of the obligations of the Trust with respect to the Trust Securities or (y)
substitutes for the Trust Securities other securities having substantially the
same terms as the Trust Securities (herein referred to as the "Successor
Securities") so long as the Successor Securities rank the same as the Trust
Securities rank in priority with respect to Distributions and payments upon
liquidation, redemption and otherwise, (ii) the Company expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of legal title to the Junior Subordinated Notes,
(iii) the Successor Securities are listed, or any Successor Securities will be
listed upon notification of
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issuance, on any national securities exchange or other organization on which the
Preferred Securities are then listed, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Trust Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of the Holders), (vi) such successor
entity has a purpose substantially identical to that of the Trust, (vii) prior
to such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease, the Company and the Property Trustee have received an Opinion of
Counsel 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 Securities (including any
Successor Securities) in any material respect (other than with respect to any
dilution of the Holders), (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 (C) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Trust (or the
successor entity) will be treated as a grantor trust for United States federal
income tax purposes, and (viii) the Company or its permitted successor or
assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Preference of the Trust Securities, consolidate, amalgamate, merge
with or into, convert into, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or 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, conversion,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE III
PAYMENT ACCOUNT
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and an agent of the Property
Trustee 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 Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
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(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Notes. Amounts
held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION; CONVERSION
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative and
accrue from the Issue Date and, except in the event that the Depositor exercises
its right to extend the interest payment period for the Junior Subordinated
Notes pursuant to Section 104 of the Supplemental Indenture, shall be payable
quarterly in arrears on _________, __________, _______ and _________ of each
year, commencing on _____ __, 2000. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed
at a rate of ___% per annum of the Liquidation Preference of the Trust
Securities. The amount of Distributions payable for any full quarterly period
shall be computed on the basis of twelve 30-day months and a 360-day year. If
the interest payment period for the Junior Subordinated Notes is extended
pursuant to Section 104 of the Supplemental Indenture (an "Extension Period"),
then the rate per annum at which Distributions on the Trust Securities
accumulate shall be increased by an amount such that the aggregate amount of
Distributions that accumulate on all Trust Securities during any such Extension
Period is equal to the aggregate amount of interest (including interest payable
on unpaid interest at the percentage rate per annum set forth above, compounded
quarterly) that accrues during any such Extension Period on the Junior
Subordinated Notes. The payment of such deferred interest, together with
interest thereon, will be distributed to the Holders of the Trust Securities as
received at the end of any Extension Period. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall
be deemed payable on each Distribution Date only to the extent that the Trust
has legally and immediately available funds in the Payment Account for the
payment of such Distributions.
(d) Distributions, including Additional Amounts, if any, on the
Trust Securities on each Distribution Date shall be payable to the Holders
thereof as they appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be the close of business on the fifteenth
calendar day prior to the relevant Distribution Date.
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Each Trust Security upon registration of transfer of or in exchange for
or in lieu of any other Trust Security shall carry the rights of Distributions
accrued (including Additional Amounts, if any) and unpaid, and to accrue
(including Additional Amounts, if any), which were carried by such other Trust
Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Junior
Subordinated Notes, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(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 Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the total Liquidation Preference of the Trust
Securities to be redeemed;
(v) the Conversion Price and that a Holder of Preferred
Securities who desires to convert such Preferred Securities called for
redemption must satisfy the requirements for conversion contained in
Section 4.05 below; and
(vi) 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 accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Junior Subordinated Notes. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be deemed payable on each
Redemption Date only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of such Redemption
Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 2:00 p.m. New York time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee will, so long
as the Preferred Securities are in book-entry only form, irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to pay
the applicable Redemption Price. If the Preferred Securities are no longer in
book-entry only form, the Property Trustee, subject to Section 4.02(c), shall
irrevocably deposit with the Paying Agent funds
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sufficient to pay the applicable Redemption Price and will give the Paying Agent
irrevocable instructions to pay the Redemption Price to the Holders thereof upon
surrender of their Preferred Securities Certificates. Notwithstanding the
foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited as required, then
upon the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except (i) the right of such
Securityholders to receive the Redemption Price, but without interest, and (ii)
the right to convert such Preferred Securities into Common Stock or cash, as the
case may be, in the manner provided in Section 4.05 hereof through the close of
business on the Business Day prior to the Redemption Date; and such Securities
will cease to be outstanding. In the event that any date on which any Redemption
Price is payable is not a Business Day, then payment of the Redemption Price
payable on such date shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Redemption Price shall 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
Trust Securities is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accrue at the then applicable rate, from such
Redemption Date originally established by the Trust for such Preferred
Securities to the date such Redemption Price is actually paid.
(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Preference of
Trust Securities to be redeemed shall be allocated 3% to the Common Securities
and 97% to the Preferred Securities, with such adjustments that each amount so
allocated shall be divisible by $50. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Property Trustee from the Outstanding Preferred Securities not previously
called for redemption, by such method as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for a redemption of
portions (equal to $50 or integral multiples thereof) of the Liquidation
Preference of Preferred Securities of a denomination larger than $50; provided,
however, that before undertaking redemption of the Preferred Securities on other
than a pro rata basis, the Property Trustee shall have received an Opinion of
Counsel that the status of the Trust as a grantor trust for United States
federal income tax purposes would not be adversely affected. The Property
Trustee shall promptly notify the Securities Registrar in writing of the
Preferred Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Preference thereof
to be redeemed. For all purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Securities redeemed or to
be redeemed only in part, to the portion of the Liquidation Preference of
Preferred Securities which has been or is to be redeemed.
(f) Subject to the foregoing provisions of Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Company or its Affiliates may, at any
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time and from time to time, purchase outstanding Preferred Securities by tender,
in the open market or by private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation Preference of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date an Indenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or Redemption
Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have waived any such
Event of Default under this Trust Agreement until the effect of all such Events
of Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Clearing Agency, such Distributions shall
be made to the Clearing Agency, which shall credit the relevant Persons'
accounts at such Clearing Agency on the applicable distribution dates. Payments
in respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
Section 4.05 Conversion. After __________, 2001, the Holders of
Trust Securities, subject to the limitations set forth in this Section, shall
have the right, at their option, to cause the Conversion Agent to convert Trust
Securities, on behalf of the converting Holders, into shares of Common Stock in
the manner described herein on and subject to the following terms and
conditions:
(i) Subject to subparagraph (ii) below, the Trust
Securities will be convertible into fully paid and nonassessable shares
of Common Stock pursuant to the Holder's direction to the Conversion
Agent to exchange such Trust Securities for a portion of the
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Junior Subordinated Notes having a principal amount equal to the
aggregate Liquidation Preference of such Trust Securities, and
immediately (unless the Spin-Off has not occurred, in which case within
the time specified in subparagraph (ii) below) convert such amount of
Junior Subordinated Notes into fully paid and nonassessable shares of
Common Stock at an initial rate of _________ shares of Common Stock for
each Trust Security (which is equivalent to a conversion price of
approximately $_____ per share of Common Stock), subject to certain
adjustments set forth in the Indenture (as so adjusted, "Conversion
Price").
(ii) At any time after __________, 2001 and prior to the
Spin-Off, the Company may elect to make a cash settlement in respect of
any Trust Security surrendered for exchange by delivering notice
thereof to the tendering Holder not more than five Trading Days after
such Trust Security is surrendered for exchange. Such cash settlement
shall be in an amount, per $50 Liquidation Preference of Trust
Securities delivered for exchange, equal to the product of (i) the
then-prevailing Conversion Price and (ii) the average of the Closing
Price of the Common Stock on the five Trading Days commencing two
Trading Days after delivery by the Company of such notice to such
Holder. The Company will pay such cash settlement amount as promptly as
practicable after the completion of such five Trading Day period.
(iii) In order to convert Trust Securities into Common
Stock or cash, as the case may be, the Holder of such Trust Securities
shall submit to the Conversion Agent an irrevocable Notice of
Conversion to convert Trust Securities on behalf of such Holder,
together, if the Trust Securities are in certificated form, with such
certificates. The Notice of Conversion shall (i) set forth the number
of Trust Securities to be converted and the name or names, if other
than the Holder, in which the shares of Common Stock or cash, as the
case may be, should be issued and (ii) direct the Conversion Agent (a)
to exchange such Trust Securities for a portion of the Junior
Subordinated Notes held by the Property Trustee (at the rate of
exchange specified in the preceding paragraph) and (b) to immediately
(unless the Spin-Off has not occurred, in which case within the time
specified in subparagraph (ii) below) convert such Junior Subordinated
Notes, on behalf of such Holder, into Common Stock (at the conversion
rate specified in the preceding paragraph) or cash, as the case may be.
The Conversion Agent shall notify the Property Trustee in writing of
the Holder's election to exchange Trust Securities for a portion of the
Junior Subordinated Notes held by the Property Trustee and the Property
Trustee shall, upon receipt of such written notice, deliver to the
Conversion Agent the appropriate principal amount of Junior
Subordinated Notes for exchange in accordance with this Section. The
Conversion Agent shall thereupon notify the Depositor of the Holder's
election to convert such Junior Subordinated Notes into shares of
Common Stock. Holders of Trust Securities at the close of business on a
Distribution payment record date will be entitled to receive the
Distribution paid on such Trust Securities on the corresponding
Distribution Date notwithstanding the conversion of such Trust
Securities on or following such record date but prior to such
Distribution Date. Except as provided above, neither the Trust nor the
Depositor will make, or be required to make, any payment, allowance or
adjustment upon any conversion on account of any accumulated and unpaid
Distributions whether or not in arrears accrued on the Trust Securities
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surrendered for conversion, or on account of any accumulated and unpaid
dividends on the shares of Common Stock issued upon such conversion.
Trust Securities submitted for conversion prior to the expiration of
conversion rights as provided in Section 4.05(iv) shall be deemed to
have been converted immediately prior to the close of business on the
day on which an irrevocable Notice of Conversion relating to such Trust
Securities is received by the Conversion Agent in accordance with the
foregoing provision (the "Conversion Date"). The Person or Persons
entitled to receive the Common Stock issuable upon conversion of the
Junior Subordinated Notes shall be treated for all purposes as the
record holder or holders of such Common Stock on the Conversion Date.
As promptly as practicable on or after the Conversion Date, if
applicable, the Depositor shall issue and deliver at the office of the
Conversion Agent a certificate or certificates for the number of full
shares of Common Stock issuable upon such conversion, together with the
cash payment, if any, in lieu of any fraction of any share to the
Person or Persons entitled to receive the same, unless otherwise
directed by the Holder in the notice of conversion and the Conversion
Agent shall distribute such certificate or certificates to such Person
or Persons.
(iv) The conversion rights of holders of the Junior
Subordinated Notes and the corresponding conversion rights of Holders
of Trust Securities shall expire either (i) at the close of business on
the Business Day prior to the date set for redemption of the Trust
Securities upon the mandatory or optional redemption of the Junior
Subordinated Notes or (ii) at the close of business on the Business Day
prior to the maturity of the Junior Subordinated Notes.
(v) Each Holder of a Trust Security by its acceptance
thereof initially appoints Bankers Trust Company not in its individual
capacity but solely as conversion agent (the "Conversion Agent") for
the purpose of effecting the conversion of Trust Securities in
accordance with this Section. In effecting the conversion and
transactions described in this Section, the Conversion Agent shall be
acting as agent of the Holders of Trust Securities directing it to
effect such conversion transactions. The Conversion Agent is hereby
authorized (i) to exchange Trust Securities from time to time for
Junior Subordinated Notes held by the Trust in connection with the
conversion of such Trust Securities in accordance with this Section and
(ii) to convert all or a portion of the Junior Subordinated Notes into
Common Stock and thereupon to deliver such shares of Common Stock or
cash, as the case may be, in accordance with the provisions of this
Section and to deliver to the Property Trustee any new Junior
Subordinated Note or Junior Subordinated Notes for any resulting
unconverted principal amount delivered to the Conversion Agent by the
Indenture Trustee.
(vi) No fractional shares of Common Stock will be issued
as a result of conversion, but, in lieu thereof, such fractional
interest will be paid in cash by the Depositor to the Conversion Agent
in an amount equal to the Current Market Price of the fractional share
of the Common Stock, and the Conversion Agent will in turn make such
payment to the Holder or Holders of Trust Securities so converted.
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(vii) Nothing in this Section 4.05 shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the
Trust Securities or as set forth in this Trust Agreement or otherwise
required of the Property Trustee or the Trust to pay any amounts on
account of such withholdings.
Section 4.06 Tax Returns and Reports. The Administrative
Trustee(s) 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. The
Administrative Trustee(s) shall provide or cause to be provided on a timely
basis to each Holder any Internal Revenue Service form required to be so
provided in respect of the Trust Securities.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01 Initial Ownership. Upon the creation of the Trust by
the contribution by the Depositor pursuant to Section 2.03 and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Depositor shall be the sole beneficial owner of
the Trust.
Section 5.02 The Trust Securities Certificates. Each of the
Preferred and Common Securities Certificates shall be issued in minimum
denominations of $50 and integral multiples in excess thereof. The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee. 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 authentication and delivery of such
Trust Securities Certificates or did not hold such offices at the date of
authentication and delivery of such Trust Securities Certificates. A transferee
of a Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates. On
the Issue Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Preference as provided in Sections
2.04 and 2.05, to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Depositor signed by its Chairman
of the Board, its President or any Vice President, without further corporate
action by the Depositor, in authorized denominations. No Trust Securities
Certificate shall entitle its holder to any benefit under this Trust Agreement,
or shall be valid for any purpose, unless there shall appear on such Trust
Securities Certificate a certificate of authentication substantially in the form
set forth in Exhibit C or Exhibit E, as applicable, executed by at least one
Administrative Trustee by manual signature; such authentication shall constitute
conclusive evidence that such Trust Securities
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Certificate shall have been duly authenticated and delivered hereunder. All
Trust Securities Certificates shall be dated the date of their authentication.
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a Securities
Register in which, subject to such reasonable regulations as it may prescribe,
the Securities Registrar shall provide for the registration of Preferred
Securities Certificates and the Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.08, the
Administrative Trustees shall execute, authenticate and deliver in the name of
the designated transferee or transferees one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation
Preference dated the date of authentication by the Administrative Trustee or
Trustees. The Securities Registrar shall not be required to register the
transfer of any Preferred Securities that have been called for redemption. At
the option of a Holder, Preferred Securities Certificates may be exchanged for
other Preferred Securities Certificates in authorized denominations of the same
class and of a like aggregate Liquidation Preference upon surrender of the
Preferred Securities Certificates to be exchanged at the office or agency
maintained pursuant to Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrative Trustees and
the Securities Registrar duly executed by the Holder or his attorney duly
authorized in writing. Each Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Securities Registrar in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar or
the Administrative Trustees may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Preferred Securities Certificates.
Section 5.05 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 Administrative Trustees 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 Administrative Trustees or any one of them on behalf of the Trust
shall execute and authenticate and make available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar
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may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of transfer, the
Trustees or the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
Distributions (subject to Section 4.01(d)) and for all other purposes
whatsoever, and neither the Trustees nor the Securities Registrar shall be bound
by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to be furnished to
(i) the Depositor and the Property Trustee semi-annually, not later than June 1
and December 1 in each year, and (ii) the Depositor or the Property Trustee, as
the case may be, within 30 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Depositor or the Property Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the time such list
is furnished; provided, that the Administrative Trustees shall not be obligated
to provide such list at any time such list does not differ from the most recent
list given to the Depositor and the Property Trustee by the Administrative
Trustees or at any time the Property Trustee is the Securities Registrar. Each
Holder, by receiving and holding a Trust Securities Certificate, shall be deemed
to have agreed not to hold either the Depositor or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived. The Property Trustee shall
comply with its obligations under Sections 310(b), 311 and 312(b) of the Trust
Indenture Act.
Section 5.08 Maintenance of Office or Agency. The Trust shall
maintain in the Borough of Manhattan, New York, an office or offices or agency
or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served. The Administrative Trustees initially designate Bankers Trust Company,
Four Albany Street, New York, New York 10006, as its principal agency for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall
make Distributions and other payments provided hereby to Securityholders from
the Payment Account and shall report the amounts of such Distributions and
payments to the Property Trustee and the Administrative Trustees. Any Paying
Agent shall have the revocable power to withdraw funds from the Payment Account
for the purpose of making the Distributions and payments provided hereby. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations
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under this Agreement in any material respect. The Paying Agent shall initially
be the Property Trustee, and it may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees and the Depositor. In the event
that a Paying Agent shall resign or be removed, the Administrative Trustees
shall appoint a successor that is acceptable to the Depositor to act as Paying
Agent (which shall be a bank or trust company). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply
to the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 5.10 Ownership of Common Securities by Depositor. On the
Issue Date, the Depositor shall acquire, and thereafter retain, beneficial and
record ownership of the Common Securities. Any attempted transfer of the Common
Securities, except for transfers by operation of law or to an Affiliate of the
Guarantor or the Depositor or a permitted successor under Section 801 of the
Subordinated Indenture, shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST
AGREEMENT REFERRED TO HEREIN".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance,
will be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in Section 5.13.
Unless and until Definitive Preferred Securities Certificates have been issued
to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in
full force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry
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Preferred Securities Certificates (including the payment of principal
of and interest on the Book-Entry Preferred Securities and the giving
of instructions or directions to Owners of Book-Entry Preferred
Securities) as the sole Holder of Book-Entry Preferred Securities and
shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Trust Agreement, the
provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency
Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates. If (i)
the Depositor advises the Trustees in writing that the Clearing Agency is no
longer willing or able to properly discharge its responsibilities with respect
to the Preferred Securities Certificates, and the Depositor is unable to locate
a qualified successor, or (ii) the Depositor at its option advises the Trustees
in writing that it elects to terminate the book-entry system through the
Clearing Agency, then the Administrative Trustees shall notify the Clearing
Agency and Holders of the Preferred Securities. Upon surrender to the
Administrative Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the
Administrative Trustees or any one of them shall execute and authenticate the
Definitive Preferred Securities Certificates in accordance with the instructions
of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
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Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the 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 other similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01 hereof, will be fully paid and nonassessable by the Trust. Except
as otherwise provided in the Expense Agreement and Section 10.01 hereof, the
Holders of the Trust Securities 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.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section
10.03 of this Trust Agreement, in the Subordinated Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
(b) So long as any Junior Subordinated Notes are held by the
Property Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture Trustee,
or executing any trust or power conferred on the Indenture Trustee with respect
to such Junior Subordinated Notes, (ii) waive any past default which is waivable
under Section 513 of the Subordinated Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Notes shall be due and payable, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Preference of the
Trust Securities; provided, however, that where a consent under the Subordinated
Indenture would require the consent of each holder of Junior Subordinated Notes
affected thereby, no such consent shall be given by the Trustees without the
prior written consent of each Holder of Preferred Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of Preferred Securities, except pursuant to a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from the Indenture
Trustee with respect to the Junior Subordinated Notes. In addition to obtaining
the foregoing approvals of the Holders of the Trust Securities, prior to taking
any of the foregoing actions, the Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the
effect that the Trust
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will not be classified as other than a grantor trust for United States federal
income tax purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Trust
Securities, whether by way of amendment to this 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 Preference of the
Outstanding Trust Securities. If any amendment or proposal referred to above
would adversely affect only the Preferred Securities or the Common Securities,
then only the affected class will be entitled to vote on the amendment or
proposal and the amendment or proposal will not be effective except without the
approval of a majority in liquidation amount of the Preferred Securities or
Common Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
Section 6.02 Notice of Meetings. Notice of all meetings of the
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Administrative Trustees pursuant to Section 10.08 to each
Preferred Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
Section 6.03 Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Preference) and the Administrative
Trustees or the Property Trustee may, at any time in their discretion, call a
meeting of Preferred Securityholders to vote on any matters as to which
Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Preferred Securities
(based upon their Liquidation Preference), present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than a majority of the Preferred Securities (based upon their Liquidation
Preference) held by the Preferred Securityholders of record present, either in
person or by proxy, at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
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Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $50 of Liquidation Preference represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding at least 66-2/3% of all outstanding Trust
Securities entitled to vote in respect of such action (or such other proportion
thereof as shall be required by any express provision of this Trust Agreement)
shall consent to the action in writing (based upon their Liquidation
Preference).
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to the
Administrative Trustees. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
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The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Preference of such Trust
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such Liquidation
Preference.
If any dispute shall arise between the Securityholders of Trust
Securities and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Trustees, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE TRUSTEES
Section 7.01 Representations and Warranties of Property Trustee. The
Trustee that acts as initial Property Trustee represents and warrants to the
Trust and to the Depositor at the date of this Trust Agreement, and each
Successor Property Trustee represents and warrants to the Trust and the
Depositor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
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(a) the Property Trustee is a New York banking corporation with
trust powers 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. 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 charter or by-laws of the Property Trustee; and
(d) No consent, approval or authorization of, or registration with
or notice to, any New York State or federal banking authority is required for
the execution, delivery or performance by the Property Trustee of this Trust
Agreement.
Section 7.02 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Depositor at the date of this Trust Agreement,
and each Successor Delaware Trustee represents and warrants to the Trust and the
Depositor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly existing and
in good standing under the laws of the State of Delaware, with 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 Delaware
Trustee of this Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee. 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' 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) No consent, approval or authorization of, or registration with
or notice to, any federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee of this Trust Agreement; and
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(d) The Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE VIII
THE TRUSTEES
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall
be as provided by this Trust Agreement and, in the case of the Property Trustee,
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) All payments made by the Property Trustee in respect of the
Trust Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the occurrence
of any Event of Default, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.08, notice of any Event of Default known to
the Property Trustee to the Securityholders, the Administrative Trustees and the
Depositor, unless such Event of Default shall have been cured or waived.
Section 8.03 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may conclusively rely and shall
be protected in acting or refraining from acting in good faith
upon any resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of
auditors or
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any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement, the Property Trustee is required to decide between
alternative courses of action, (B) in construing any of the
provisions in this Trust Agreement, the Property Trustee finds
the same ambiguous or inconsistent with any other provisions
contained herein, or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice
to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property
Trustee shall take such action, or refrain from taking such
action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the
extent practicable shall not be less than two Business Days),
it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement
as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
(iii) the Property Trustee may consult with counsel of its
selection 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;
(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Trust Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
security or indemnity satisfactory to the Property Trustee
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other document, unless requested in writing to do so by one or
more Securityholders; and
(vi) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, provided
that the Property Trustee shall be responsible for its own
negligence or
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recklessness with respect to selection of any agent or
attorney appointed by it hereunder.
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless a Responsible Officer shall have received
written notice from the Company, any Holder or any other Trustee that such funds
are not legally available.
Section 8.05 May Hold Securities. Except as provided in the definition
of the term "Outstanding" in Article I, any Trustee or any other agent of the
Trustees or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such other agent.
Section 8.06 Compensation; Fees; Indemnity.
The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable
compensation for all services rendered by the Trustees hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustees upon request for all reasonable expenses, disbursements and
advances incurred or made by the Trustees in accordance with any provision of
this Trust Agreement (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their willful misconduct,
negligence or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees
harmless against, any and all loss, damage, claim, liability or expense incurred
without willful misconduct, negligence or bad faith on their part, arising out
of or in connection with the acceptance or administration of this Trust
Agreement, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder.
The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement.
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Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that has
a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to
the Trust Securities. The Delaware Trustee shall either be (i) a natural person
who is at least 21 years of age and a resident of the State of Delaware or (ii)
a legal entity authorized to conduct a trust business and with its principal
place of business in the State of Delaware that shall act through one or more
persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. To the extent permitted by the Trust Indenture Act, the Property
Trustee shall not be deemed to have a conflicting interest by virtue of being
trustee under the Guarantee.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Holder of the Common Securities and the
Property Trustee shall have power to appoint, and upon the written request of
the Property Trustee, the Depositor shall for such purpose join with the
Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such Trust Property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or Persons
in the capacity aforesaid, any property, title, right or power deemed necessary
or desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Indenture Event of Default has occurred and is
continuing, the
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Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall satisfy the
requirements of Section 8.07.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right or power, any and all
such instruments shall, on request, be executed, acknowledged, and delivered by
the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed, 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
Trustees hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed
by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case an Indenture Event
of Default has occurred and is continuing, the Property Trustee shall
have power to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(iv) 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.
(v) The Trustees shall not be liable by reason of any act
of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
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Section 8.10 Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the resigning Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Holder
of the Common Securities. If an Indenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at such time by Act of
the Securityholders of a majority in Liquidation Preference of the Preferred
Securities then Outstanding, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holder of the Common Securities, by Act of
the Holder of the Common Securities delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when an
Indenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority in Liquidation
Preference of the Preferred Securities then Outstanding, delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee shall have been
so appointed in accordance with this Section 8.10 and accepted appointment in
the manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each resignation and
each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated or resigns, the
vacancy created by such death, incompetence or incapacity or resignation may be
filled by (i) the act of the remaining Administrative Trustee or (ii)
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otherwise by the Depositor (with the successor in each case being an individual
who satisfies the eligibility requirement for Administrative Trustees set forth
in Section 8.07). Additionally, notwithstanding the foregoing or any other
provision of this Trust Agreement, in the event the Depositor believes that any
Administrative Trustee has become incompetent or incapacitated, the Depositor,
by notice to the remaining Trustees, may terminate the status of such Person as
an Administrative Trustee (in which case the vacancy so created will be filled
in accordance with the preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust 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 its charges, 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.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Junior Subordinated Notes
or the Trust Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
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(a) "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Depositor or the Trust (or any such obligor) for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession
of or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor relationship with the
Depositor or the Trust (or any such obligor) arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with May
15, 2001, if required by Section 313(a) of the Trust Indenture Act, the Property
Trustee shall transmit a brief report dated as of such May 15 with respect to
any of the events specified in such Section 313(a) that may have occurred since
the later of the date of this Trust Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
Section 8.15 Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and, within 120 days after the end of each
fiscal year of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the manner required by
Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement 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 pursuant to Section 314(c)(1) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be five, provided that
the Depositor by written instrument may increase or decrease the number of
Administrative Trustees.
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(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted to the
Administrative Trustees and shall discharge the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.07(A), including any registration statement or
amendment thereto filed with the Commission, or making any other governmental
filing; and
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders. If (i) the Trust fails to pay Distributions in full on the
Preferred Securities for more than 20 consecutive quarterly distribution
periods, or (ii) an Event of Default occurs and is continuing, then the Holders
of Preferred Securities will rely on the enforcement by the Property Trustee of
its rights against the Company as the holder of the Junior Subordinated Notes.
In addition, the Holders of a majority in aggregate Liquidation Preference of
the Preferred Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee or to direct the exercise of any trust or power conferred upon the
Property Trustee under this Trust Agreement, including the right to direct the
Property Trustee to exercise the remedies available to it as the holder of the
Junior Subordinated Notes, provided that such direction shall not be in conflict
with any rule of law or with this Trust Agreement, and could not involve the
Property Trustee in personal liability in circumstances where reasonable
indemnity would not be adequate. If the Property Trustee fails to enforce its
rights under the Junior Subordinated Notes, a Holder of Preferred Securities
may, to the fullest extent permitted by applicable law, institute a legal
proceeding against the Company to enforce its rights under this Trust Agreement
without first instituting any legal proceeding against the Property Trustee or
any other Person, including the Trust; it being understood and intended that no
one or more of such Holders shall have any right in any manner whatsoever by
virtue of, or by availing of, any provision of this Trust Agreement to
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<PAGE> 48
affect, disturb or prejudice the rights of any other of such Holders or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Trust Agreement, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
Notwithstanding the foregoing, a Holder of Preferred Securities may institute a
legal proceeding directly against the Company, without first instituting a legal
proceeding against or requesting or directing that action be taken by the
Property Trustee or any other Person, for enforcement of payment to such Holder
of principal of or interest on the Junior Subordinated Notes having a principal
amount equal to the aggregate stated liquidation preference of the Preferred
Securities of such Holder on or after the due dates therefor specified or
provided for in the Junior Subordinated Notes. The Company shall be subrogated
to all rights of the Holders of Preferred Securities in respect of any amounts
paid to such Holders by the Company pursuant to this Section.
ARTICLE IX
TERMINATION AND LIQUIDATION
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, 2031 (the "Expiration Date") or earlier
pursuant to Section 9.02.
Section 9.02 Early Termination. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of
the Depositor, dissolution or liquidation of the Depositor, or the
dissolution of the Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property
Trustee by the Depositor at any time (which direction is optional and
wholly within the discretion of the Depositor) to terminate the Trust
and distribute the Junior Subordinated Notes to Securityholders as
provided in Section 9.04;
(iii) the payment at maturity or redemption of all of the
Junior Subordinated Notes, and the consequent payment of the Preferred
Securities; and
(iv) the distribution of Common Stock or cash, as the case
may be, to all Holders upon conversion of all outstanding Trust
Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of any expenses owed
by the Trust; and (c) the discharge of all
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<PAGE> 49
administrative duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of
Section 9.02 occurs, the Trust shall be liquidated and the Property Trustee
shall distribute the Junior Subordinated Notes to the Securityholders as
provided in this Section 9.04.
(b) In connection with a distribution of the Junior Subordinated
Notes, each Holder of Trust Securities shall be entitled to receive, after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Junior
Subordinated Notes. Notice of liquidation shall be given by the Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Junior Subordinated Notes; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Junior Subordinated Notes as the Administrative Trustees or the
Property Trustee shall deem appropriate.
(c) In order to effect the liquidation of the Trust and
distribution of the Junior Subordinated Notes to Securityholders, the Property
Trustee shall establish a record date for such distribution (which shall be not
more than 45 days prior to the Liquidation Date) and, either itself acting as
exchange agent or through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to effect the
distribution of Junior Subordinated Notes in exchange for the Outstanding Trust
Securities Certificates.
(d) After the Liquidation Date, (i) the Trust Securities will no
longer be deemed to be Outstanding, (ii) certificates representing a Like Amount
of Junior Subordinated Notes will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of Junior
Subordinated Notes, accruing interest at the rate provided for in the Junior
Subordinated Notes from the last Distribution Date on which a Distribution was
made on such Trust Certificates until such certificates are so surrendered (and
until such certificates are so surrendered, no payments of interest or principal
will be made to Holders of Trust Securities Certificates with respect to such
Junior Subordinated Notes) and (iv) all rights of Securityholders holding Trust
Securities will cease, except the right of such
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<PAGE> 50
Securityholders to receive Junior Subordinated Notes upon surrender of Trust
Securities Certificates.
(e) The Depositor will use its best efforts to have the Junior
Subordinated Notes that are distributed in exchange for the Preferred Securities
to be listed on such securities exchange as the Preferred Securities are then
listed. The Depositor may elect to have the Junior Subordinated Notes issued in
book-entry form to the Clearing Agency or its nominee.
Section 9.05 Bankruptcy. If an Early Termination Event specified in
clause (i) of Section 9.02 has occurred, the Trust shall be liquidated. The
Property Trustee shall distribute the Junior Subordinated Notes to the
Securityholders as provided in Section 9.04, unless such distribution is
determined by the Administrative Trustees not to be practical, in which event
the Holders will be entitled to receive out of the assets of the Trust available
for distribution to Securityholders, after satisfaction of liabilities to
creditors, an amount equal to the Liquidation Preference per Trust Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such 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 Preferences). The
Holder of the Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution, winding-up or termination pro rata
(determined as aforesaid) with Holders of Preferred Securities, except that, if
an Indenture Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each Person to whom the Trust is now or hereafter becomes indebted or liable
(the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders of any Preferred
Securities or other similar interests in the Trust the amounts due such Holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This guarantee is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The death or
incapacity of any Person having an interest, beneficial or otherwise, in a Trust
Security shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such Person or any Securityholder for such
Person, to claim an accounting, take any action or bring any proceeding in and
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.
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<PAGE> 51
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) (A)
to cure any ambiguity, (B) to correct or supplement any provision herein which
may be defective or inconsistent with any other provision herein, (C) to make
any other provisions with respect to matters or questions arising under this
Trust Agreement, which shall not be inconsistent with the other provisions of
this Trust Agreement, (D) to add to the covenants, restrictions or obligations
of the Depositor or (E) to conform to changes in, or a change in interpretation
or application of, certain Investment Company Act requirements by the
Commission; provided, however, that any such amendment described in clause (i)
shall not adversely affect in any material respect the interests of any
Securityholder, (ii) to modify, eliminate or add to any provisions of this Trust
Agreement to such extent as shall be necessary to ensure that the Trust will not
be classified as other than a grantor 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) to evidence the acceptance of the appointment
of a Successor Trustee or fill a vacancy created by an increase in the number of
Administrative Trustees; provided, however, that, except in the case of clause
(ii), such action shall not adversely affect in any material respect the
interests of any Securityholder and, in the case of clause (i), any amendments
of this Trust Agreement shall become effective when notice thereof is given to
the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision
in this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Preferences) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
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 Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 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, (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date, or (iii) change
the consent required pursuant to Section 10.03.
(d) Notwithstanding any other provisions of this Trust Agreement,
the Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would (i) cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act, afforded by Rule 3a-5 thereunder, (ii) reduce or otherwise adversely affect
the powers of the Property Trustee in contravention of the Trust Indenture Act
or (iii) cause
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<PAGE> 52
the Trust to fail to continue to be classified for purposes of the United States
federal income taxation as a grantor trust.
(e) Without the consent of the Depositor, this Trust Agreement may
not be amended in a manner which imposes any additional obligation on the
Depositor. In executing any amendment permitted by this Trust Agreement, the
Trustees shall be entitled to receive, and (subject to Section 8.01) shall be
fully protected in relying upon an Opinion of Counsel stating that the execution
of such amendment is authorized or permitted by this Trust Agreement and an
Officers' Certificate stating that such amendment is permitted by, and conforms
to, the terms of this Trust Agreement. Any Trustee may, but shall not be
obligated to, enter into any such amendment which affects such Trustee's own
rights, duties, immunities or liabilities under this Trust Agreement or
otherwise.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
Section 10.04 Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE;
PROVIDED THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE SHALL
BE GOVERNED BY NEW YORK LAW.
Section 10.06 Successors. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to both the Trust and the
Trustees, including any successor by operation of law.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address appear on the
Securities Register and (ii) in the case of the Common Securityholder or the
Depositor, to Southern Energy, Inc., 900 Ashwood Parkway, Suite 500, Atlanta,
Georgia 30338, Attention: Treasurer, Facsimile No. (404) 821-7000. Such notice,
demand or other communication to or upon a Securityholder shall be deemed to
have been sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission.
47
<PAGE> 53
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 or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee and the Delaware Trustee, Bankers Trust Company, Four Albany Street, New
York, New York, 10006, Attention: Corporate Trust and Agency Group, Manager
Public Utilities Group; Bankers Trust (Delaware), E.A. Delle Donne Corporate
Center, 1011 Centre Road, Suite 200, Wilmington, Delaware 19805-1266, Attention:
Lisa Wilkens, as the case may be; and (ii) with respect to the Administrative
Trustees, to them at the address above for notices to the Depositor, marked
Attention: Administrative Trustees of SEI Trust I c/o Corporate Secretary. Such
notice, demand or other communication to or upon the Trust or the Trustees shall
be deemed to have been sufficiently given or made only upon actual receipt of
the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for the Trustees or the Trust may assert. The provisions of this Section
10.09 shall survive the termination of this Trust Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
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<PAGE> 54
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
49
<PAGE> 55
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or have caused this Trust Agreement to be executed on their behalf,
all as of the day and year first above written.
SOUTHERN ENERGY, INC.,
as Depositor
By:
-----------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Property Trustee
By:
-----------------------------------------------
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware Trustee
By:
-----------------------------------------------
Name:
Title:
--------------------------------------------------
Elizabeth B. Chandler, as Administrative Trustee
--------------------------------------------------
J. William Holden, III, as Administrative Trustee
--------------------------------------------------
Douglas L. Miller, as Administrative Trustee
<PAGE> 56
EXHIBIT A
NOTICE OF CONVERSION
To: Bankers Trust Company
as Property Trustee of
SEI Trust I
The undersigned owner of these Preferred Securities hereby irrevocably
exercises the option to convert these Preferred Securities, or the portion below
designated, into Common Stock of Southern Energy, Inc. (the "Southern Energy
Common Stock") in accordance with the terms of the Amended and Restated Trust
Agreement (as amended from time to time, the "Trust Agreement"), dated as of
_________ 1, 2000, by Elizabeth B. Chandler, J. William Holden, III and Douglas
L. Miller, as Administrative Trustees, Bankers Trust (Delaware), as Delaware
Trustee, Bankers Trust Company, as Property Trustee, and Southern Energy, Inc.,
as Depositor. Pursuant to the aforementioned exercise of the option to convert
these Preferred Securities, the undersigned hereby directs the Conversion Agent
(as that term is defined in the Trust Agreement) to (i) exchange such Preferred
Securities for a portion of the Junior Subordinated Notes (as that term is
defined in the Trust Agreement) held by the Trust (at the rate of exchange
specified in the terms of the Preferred Securities set forth in the Trust
Agreement) and (ii) convert such Junior Subordinated Notes on behalf of the
undersigned, into Southern Energy Common Stock or cash, as the case may be, (at
the conversion rate specified in the terms of the Preferred Securities set forth
in the Trust Agreement).
Exhibit A - Page 1
<PAGE> 57
The undersigned does also hereby direct the Conversion Agent that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Date:
-----------------------
in whole in part
-------------- --------
Number of Preferred Securities to be converted:
-----------------------------------------------
If a name or names other than the
undersigned, please indicate in the spaces
below the name or names in which the shares
of Southern Energy Common Stock are to be
issued, along with the address or addresses of
such person or persons
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
Signature (for conversion only) Please Print
or Typewrite Name and Address, Including Zip
Code, and Social Security or Other Identifying
Number
-----------------------------------------------
-----------------------------------------------
-----------------------------------------------
Signature Guarantee:*
-----------------------------------------------
* (Signature must be guaranteed by an institution which is a member of
the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
Exhibit A - Page 2
<PAGE> 58
EXHIBIT B
[INTENTIONALLY RESERVED]
Exhibit B - Page 1
<PAGE> 59
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE
TRUST AGREEMENT REFERRED TO HEREIN
Certificate Number Number of Common Securities
C-1 ________
Certificate Evidencing Common Securities
of
SEI Trust I
Common Securities
(Liquidation Preference $50 per Common Security)
SEI Trust I, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that Southern Energy, Inc.
(the "Holder") is the registered owner of _____________ (_______) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Common Securities (liquidation preference
$50 per Common Security) (the "Common Securities"). In accordance with Section
5.10 of the Trust Agreement (as defined below), the Common Securities are not
transferable, except by operation of law, and any attempted transfer hereof
shall be void. The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set forth in, and
this certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of ______ 1, 2000, as the same
may be amended from time to time (the "Trust Agreement"), including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Exhibit C - Page 1
<PAGE> 60
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of ________, 20__.
SEI TRUST I
By:
------------------------------------------------
Elizabeth B. Chandler, as Administrative Trustee
By:
-------------------------------------------------
J. William Holden, III, as Administrative Trustee
By:
-------------------------------------------------
Douglas L. Miller, as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Trust Agreement.
------------------------------
as Administrative Trustee
Exhibit C - Page 2
<PAGE> 61
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of _________ 1, 2000, between Southern Energy, Inc., a Delaware
corporation (the "Company"), and SEI Trust I, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Junior Subordinated Notes from the Company and to
issue and sell SEI Trust I ___% Convertible Trust Preferred Securities, Series A
(the "Preferred Securities") with such powers, preferences and special rights
and restrictions as are set forth in the Amended and Restated Trust Agreement of
the Trust dated as of ________ 1, 2000, as the same may be amended from time to
time (the "Trust Agreement"); and
WHEREAS, the Company is the issuer of the Junior Subordinated Notes.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges will be made in reliance
upon the execution and delivery of this Agreement, the Company and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Preferred Securities, under any Obligation, under the Guarantee
Agreement dated the date hereof by the Company and Bankers Trust Company, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Exhibit D - Page 1
<PAGE> 62
Section 1.03. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements
and duties of the Company under this Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of
all or any portion of the Obligations or for the performance of any
other obligation under, arising out of or in connection with, the
Obligations;
(b) any failure, omission, delay or lack of diligence on
the part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Preferred Securities of any series are outstanding, this Agreement shall not
be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Preferred Securities.
Section 2.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail), telex or by registered or certified mail, addressed as
Exhibit D - Page 2
<PAGE> 63
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex), to-wit:
SEI Trust I
c/o Bankers Trust Company
Four Albany Street
New York, New York 10006
Facsimile No.: (212) 250-6725
Attention: Corporate Trust and Agency Group
Manager Public Utilities Group
Southern Energy, Inc.
900 Ashwood Parkway, Suite 500
Atlanta, Georgia 30338
Facsimile No.: (770) 821-7000
Attention: Treasurer
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
Exhibit D - Page 3
<PAGE> 64
THIS AGREEMENT is executed as of the date and year first above written.
SOUTHERN ENERGY, INC.
By:
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SEI TRUST I
By:
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Elizabeth B. Chandler, Administrative Trustee
Exhibit D - Page 4
<PAGE> 65
EXHIBIT E
Unless this certificate is presented by an authorized representative of
The Depository Trust Company a New York corporation ("DTC"), to SEI Trust I or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment made to Cede &
Co. or to such other entity as is requested by an authorized representative of
DTC), any transfer, pledge or other use hereof for value or otherwise by or to
any person is wrongful inasmuch as the registered owner thereof, Cede & Co., has
an interest herein.
Certificate Number Number of Preferred Securities
___________
P-1
CUSIP NO. _______
Certificate Evidencing Preferred Securities
of
SEI Trust I
______% Convertible Trust Preferred Securities, Series A
(Liquidation Preference $50 per Preferred Security)
SEI Trust I, a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the "Holder")
is the registered owner of _____ MILLION (_______) preferred securities of the
Trust representing undivided beneficial interests in the assets of the Trust and
designated the SEI Trust I ____% Convertible Trust Preferred Securities, Series
A (liquidation preference $50 per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.04 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of ________ 1, 2000, as the same may be amended from time to
time (the "Trust Agreement"), including the designation of the terms of
Preferred Securities as set forth therein. The holder of this certificate is
entitled to the benefits of a guarantee by Southern Energy, Inc., a Delaware
corporation (the "Company"), pursuant to a Guarantee Agreement between the
Company and Bankers Trust Company, as guarantee trustee, dated as of _________
1, 2000, as the same may be amended from time to time (the "Guarantee"), to the
extent provided therein. The Trust will furnish a copy of the Trust Agreement
and the Guarantee to the holder of this certificate without charge upon written
request to the Trust at its principal place of business or registered office.
Exhibit E - Page 1
<PAGE> 66
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
Exhibit E - Page 2
<PAGE> 67
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of _________, 20__.
SEI TRUST I
By:
------------------------------------------------
Elizabeth B. Chandler, as Administrative Trustee
By:
-------------------------------------------------
J. William Holden, III, as Administrative Trustee
By:
-------------------------------------------------
Douglas L. Miller, as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
-----------------------------
as Administrative Trustee
Exhibit E - Page 3
<PAGE> 68
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
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Signature:
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(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
