Exhibit 4.4-B
TRUST AGREEMENT
OF
DUKE ENERGY CAPITAL TRUST II
THIS TRUST AGREEMENT is made as of November 14, 1997 (this "Declaration"), by
and among Duke Energy Corporation, a North Carolina corporation, as depositor
(the "Depositor"), and Chase Manhattan Bank Delaware, a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "Duke Energy Capital Trust II"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the Trust
the sum of $10. Such amount shall constitute the initial trust estate. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
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(S)3801, et seq. (the "Business Trust Act"), and that this document constitute
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the governing instrument of the Trust. The Trustee is hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated Trust
Agreement or Declaration satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Trustee may take all actions deemed proper as
are necessary to effect the transactions contemplated herein.
4. The Depositor is hereby authorized, in its sole discretion, (i) to file
with the Securities and Exchange Commission (the "Commission") and to execute,
in the case of the 1933 Act Registration Statement and 1934 Act Registration
Statement (as herein defined), on behalf of the Trust, (a) the 1933 Act
Registration Statement, including pre-effective or post-effective amendments to
such Registration Statement, relating to the registration under the Securities
Act of 1933, as amended (the "1933 Act"), of the Preferred Securities of the
Trust, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the Preferred Securities required to be filed under the 1933 Act,
and (c) if required, a Registraton Statement on Form 8-A or other appropriate
form (the "1934 Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the Preferred
Securities of the Trust under the Securities Exchange Act of 1934, as amended;
(ii) to file with the New York Stock Exchange or any other exchange
(collectively, the "Exchange") and execute on behalf of the Trust a listing
application and all other applications, statements, certificates, agreements and
other instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed
on the Exchange; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Preferred Securities under the securities
or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; (iv) to execute, deliver and perform on
behalf of the Trust, an underwriting agreement with the Depositor and the
underwriter or underwriters of the Preferred Securities of the Trust; (v) to
execute, deliver and perform a depository agreement with the initial clearing
agency, relating to the Preferred Securities; and (vi) to apply for and obtain a
tax identification number for the Trust.
In the event that any filing referred to in this Section 4 is required by the
rules and regulations of the Commission, PORTAL or state securities or Blue Sky
laws to be executed on behalf of the Trust by the Trustee, the Trustee, in its
capacity as trustee of the Trust, is hereby authorized and directed to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Chase Manhattan Bank Delaware, in its
capacity as trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, PORTAL or state securities or Blue
Sky laws. In connection with all of the foregoing, the Depositor hereby
constitutes and appoints Xxxxxx X. Xxxxx III, as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and any 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Declaration may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and thereafter
the number of trustees of the Trust shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of trustees of the Trust; provided, however, that to the
extent required by the Business Trust Act, one trustee of the Trust shall either
be a natural person who is a resident of the State of Delaware or, if not a
natural person, any entity which has its principal place of business in the
State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Declaration shall be governed by, and construed in accordance with,
the laws of the State of Delaware (with regard to conflict of laws principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be duly
executed as of the day and year first above written.
DUKE ENERGY CORPORATION, as Depositor
By: /s/ Xxxxxx X. Xxxxx III
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Name: Xxxxxx X. Xxxxx III
Title: Assistant Secretary
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but
solely as trustee of the Trust
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Trust Officer
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